R v Alex & Ors

1. [1]

   On 8 February 2024 George Alex (the applicant) filed a notice of motion claiming the following orders:

2. [2]

   The proposed order (1) may be referred to as a “take down order”. The articles referred to are listed in a schedule to the supporting affidavit. There 116 of them, on websites maintained by 17 separate media organisations. Some of the media organisations are in common ownership. The dates of original publication of the articles range between 10 March 2013 and 21 April 2023. Most of the articles date from 2014-2016 inclusive.

3. [3]

   The trial of the applicant on two counts of conspiracy commenced on 12 February 2024. Five co-accused are on trial with him. The trial date was fixed on 24 May 2023 and confirmed on 21 July 2023. A fixture for earlier in that year had to be vacated because of delays in the Crown’s preparation and in its service of documents on defence representatives.

4. [4]

   The alleged conspiracies are said to have concerned certain companies that paid wages to building industry workers, whose services were provided to construction contractors under labour hire arrangements. It is alleged that the companies failed to remit to the Australian Taxation Office income tax that was required to be withheld from the workers under Pay As You Go (“PAYG”) provisions of Schedule 1 to the Taxation Administration Act 1953 (Cth). The first count is a conspiracy to cause loss to the Commonwealth; the second is a conspiracy to deal with proceeds of crime. It is alleged that the conspiracies were on foot and that their objects were carried out over a little more than two years, between 1 July 2018 and 21 July 2020.

5. [5]

   As opened by prosecuting counsel, the Crown case will include documentary evidence of a very large number of banking transactions, numerous charts of complex relationships and funds flows between corporate entities and 130 hours of conversations between the six accused and others. The conversations were intercepted on the telephone system or by electronic surveillance devices. The Crown estimates a trial duration of at least six months. Extra jurors have been empanelled, to the limit permissible under the Jury Act 1977 (NSW), as a hedge against the possible need for individual discharges during such a long trial.

6. [6]

   The articles that the applicant seeks to have taken down have been located on the World Wide Web, by his solicitors carrying out searches for his name and for other search terms. In many of the articles located by that means the applicant’s name appears in the headline and/or prominently in the content. A number of the articles contain assertions that he is associated with named individuals who are reported, either in the articles themselves or widely elsewhere, to be convicted criminals or alleged criminals. Some of the articles report allegations of corrupt conduct by the applicant in relation to the building industry, including allegations of paying or offering bribes to unions and allegations that he has threatened violence and/or procured others to threaten or carry out violent acts. A significant part of the adverse material draws upon questioning that took place and allegations that were made before the Royal Commission into Trade Union Governance and Corruption. The Royal Commission conducted its inquiry in 2014-2015. The applicant gave evidence in the Royal Commission’s hearings.

7. [7]

   The following are relevant extracts of the sections of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”) pursuant to which the take down order is sought:

8. [8]

   The applicant’s counsel submitted in writing that the following considerations would justify the Court making the proposed order:

   1. (1)

      The articles are said to be “sensationalist”, describing the applicant in “an exceptionally unfavourable light”.

   2. (2)

      Because of the expected length of the trial, there is a heightened risk that one or more of the jurors will seek information concerning the accused or the subject matter of the trial, by searching on the internet in breach of s 68C of the Jury Act and in disregard of the instructions they have been given from the bench.

   3. (3)

      If a juror should misconduct himself or herself by undertaking internet searches and if in consequence it should be found necessary to discharge the whole jury, the cost and other consequences for the accused, for the prosecution and for the Court could be extremely serious, particularly if such an event should occur some months into the trial.

   4. (4)

      The order is sought in respect of nominated articles that can be found at specified URLs. There is thus no uncertainty in the field of operation of the proposed order and there should be no difficulty about compliance.

9. [9]

   Point (1) was elaborated in oral submissions with reference to some of the impugned internet material. I have viewed a significant sample of the articles, sufficient to be in a position to accept that they include clear imputations, in strong terms, that the applicant has acted dishonestly and corruptly in the building industry, that he has done so in concert with others who are referred to in some of the articles as gang members and that he is an “underworld figure” with close connections to people who are known to be or are asserted to be criminals.

10. [10]

    In oral argument with respect to point (2), counsel submitted that the risk of a juror undertaking an internet search and thereby finding some of the damaging articles is increased by circumstances peculiar to this case, namely, the ease with which the articles can be located, the length of the trial over which jurors may be tempted to disregard s 68C and my directions and the fact that the subject matter of the trial is likely to be outside the common experience of jury members so that pursuit of information on the internet would be more than usually attractive. Counsel submitted that, despite the courts’ general confidence that juries will obey directions, nevertheless reported decisions show that this expectation is from time to time disappointed.

11. [11]

    Counsel submitted that it is not incumbent upon the applicant to demonstrate that the take down order would be efficacious to the extent that the 116 articles to which it is directed constitute the entirety of damaging publicity accessible on the web. He submitted that the order can be justified on the basis that, by removing the nominated articles, the risk of adverse material being found by any juror who might undertake a search, contrary to s 68C and my direction, can be significantly reduced.

12. [12]

    The applicant’s solicitors served the notice of motion and supporting affidavit on the media proprietors who control all but one of the websites on which the impugned articles can be found. Mr Lewis of counsel appeared on behalf of those proprietors, to oppose the orders sought.

Limits of the Court’s power: necessity under s 8(1)(a)

1. [13]

   The articles that the applicant seeks to have taken down are continuously published so long as they remain accessible on the internet. The order under appeal in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 likewise concerned material on the internet but it was expressed in terms much more sweeping than the order sought in the notice of motion before me. In that case Basten JA (Bathurst CJ and Whealy JA agreeing) considered two distinct fields in which orders to “prohibit or restrict … publication or other disclosure” may be made under s 7 of the Court Suppression and Non-Publication Orders Act, as follows:

2. [14]

   Like the order considered in that case, the order now claimed by the applicant falls into the first category. The only connection with court proceedings of the articles that the applicant seeks to have taken down lies in their capacity to affect the current trial. The objective of safeguarding the public interest in open justice, as provided for in s 6 of the Act, is not relevant. The trial will be conducted in open court and may be reported upon in mass media. No party has suggested otherwise.

3. [15]

   Of the several grounds listed in s 8(1) of the Act, only par (a) is capable of supporting an order directed to “the protection of the jury from inflammatory or irrelevant material while the proceedings are on foot (the ‘sub judice principle’)”: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim at [36]. Basten JA’s judgment in that case includes the following statements of general principle about what would satisfy the criterion “necessary to prevent prejudice to the proper administration of justice” in s 8(1)(a).

The holding in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim

1. [16]

   Mr Lewis on behalf of the media proprietors has sought to rely upon Basten JA’s judgment in the Ibrahim case to an extent that makes it necessary to refer to the decision in some detail. The District Court trial judge’s order that was under appeal is set out at [11]. It was to the effect that “there is to be no disclosure, dissemination or provision of access” to members of the public by any means, including “by means of the internet” of material containing reference to other criminal proceedings against the accused or allegations against him. The order restrained such disclosure or publication “within the Commonwealth of Australia”. It was not limited to continuing publication of specified articles, in contrast with the order sought in the present proceedings. It was not directed to named or otherwise identifiable persons who were in control of websites where potentially infringing content might be accessible.

2. [17]

   The ultimate holding of the Court of Criminal Appeal was that the order was not “necessary to prevent prejudice to the proper administration of justice”, as required by s 8(1)(a), and was beyond the power conferred on the District Court by the Act. Basten JA’s conclusions directly supporting that outcome are as follows:

3. [18]

   The requirement expressed in the first sentence of [98] is to be understood in light of the general law of contempt so far as it concerns publication of material that may prejudice the administration of justice. Deane J’s summary of the law in Hinch v Attorney-General (Vic) (No 2) [1987] HCA 56; (1987) 164 CLR 15 at pp 46-47 is sufficient for present purposes, as follows:

4. [19]

   When Basten JA said that an order under the Act should be “in a form which would be appropriate in the inherent jurisdiction of the Supreme Court to prevent an apprehended breach of the sub judice principle” he was referring to the features of a quia timet injunction that might be issued against a named alleged contemnor identifying specific material or content, publication of which would constitute the contempt. The District Court order under consideration in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim was at a level of generality that fell well short of those requirements.

The power in s 7 is not equated with the jurisdiction to restrain a contempt

1. [20]

   In reliance on [93], [94] and [98] of Basten JA’s judgment, Mr Lewis submitted that because an order of the type sought by Mr Alex is in the nature of an injunction to prevent sub judice contempt, although it is sought pursuant to the statute, the following pre-requisites would have to be fulfilled:

2. [21]

   I do not accept that submission. The principles of the law of contempt in this area do not include that the publisher must be shown to have knowledge of the relevant proceedings as a prerequisite to there being sufficient apprehension of a sub judice contempt to warrant an injunction. Further, the Court of Criminal Appeal in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim did not decide that the operation of the Courts Suppression and Non-publication Orders Act is confined to the field of the pre-existing law (as the above-quoted oral submission appeared to suggest) or that an order can only be made under s 7 of the Act if the general law under which an injunction might be granted to restrain a contempt appears insufficient to the case (as submitted by Mr Lewis in writing).

3. [22]

   In a number of paragraphs of his judgment Basten JA explored the general law concerning injunctions to restrain sub judice contempt and considered the relationship between that body of law and the Act. Those parts of his Honour’s judgment do not all express settled conclusions; nor are they all essential links in a chain of reasoning that led to resolution of the case. His Honour did not hold that the requirement of being “necessary to prevent prejudice to the proper administration of justice” in s 8(1)(a) can only be satisfied if “the publications are contemptuous” and if the publishers “have sufficient knowledge that would warrant the orders being sought under the inherent power”, as put by Mr Lewis. In the subsequent decision in AW v R [2016] NSWCCA 227 the Court of Criminal Appeal referred to Basten JA’s judgment but did not recognise it as establishing any interdependence, as advanced in Mr Lewis’ submissions, between the jurisdiction conferred by the Act and the Court’s inherent jurisdiction to deal with threatened contempts.

Rejection by the publisher of a request to take down is not a prerequisite

1. [23]

   The second sentence of [98] in Basten JA’s judgement follows from his Honour’s reference at [93] to the usual expectation that a party applying for a quia timet injunction under the general law should “have some basis for its fear that a particular breach of a statutory or common law right may occur”. At [94] his Honour suggested a procedure whereby the Director of Public Prosecutions could conduct an internet search, identify websites containing publicly accessible material that might compromise the fairness of a forthcoming trial and request the party in control of the site to remove the material. Although not stated in explicit terms, his Honour evidently considered that, subject to the nature of the material, if such a request were not complied with there might thereby be established a basis for an apprehension that a sub judice contempt would be committed.

2. [24]

   Mr Lewis submitted that essential prerequisites for an application such as the present are that the applicant should put the relevant publishers on notice of the information that is allegedly “contemptuous and has an inherent tendency to affect the trial”; the applicant should inform the Director of Public Prosecutions (of the Commonwealth, in this case) about the material; the DPP should then make its own searches of the internet and communicate to the publishers a takedown request, with reasons. It was submitted that only if the publishers should refuse to act upon that request could an application such as the present be brought.

3. [25]

   I do not accept that submission. In Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim the District Court orders were made on 28 March 2012 and the Court of Criminal Appeal handed down its decision on 13 June 2012. The report does not disclose the date when the trial was to commence but it must have been a date several months after the District Court orders were made. Basten JA’s view that a takedown order under s 7 of the Act could usually only be shown to be “necessary” if a request had first been made and refused is to be understood in the context of a timeframe that would allow for request and refusal.

4. [26]

   In the present case, the applicant’s notice of motion was filed on the second last sitting day before the jury were to be empanelled, notwithstanding the age of the internet articles and the long notice of the trial date. The applicant’s timing has been disruptive and distracting, at the beginning of a six-month trial, and has not been explained or justified. However, it means that for the purpose of promptly resolving this application, relating as it does to a trial that is now underway, the question of necessity must be determined on criteria other than whether a request for takedown has first been made and refused. The unwillingness of the media organisations to remove the impugned articles from public access on the internet has been readily ascertained at the hearing of the motion. A process of consideration by the DPP, request to the media organisations for takedown and refusal by those organisations would be merely formal and procedural. It would be without utility for addressing the real substance of the question of necessity, which is whether the impugned articles have a significant capacity to cause the trial to miscarry and whether that risk is mitigated by the statutory constraints of the Jury Act and the directions of the trial judge, in accordance with which the jury will be required to perform their duty.

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim does not preclude the narrower orders presently sought

1. [27]

   Mr Lewis made the following submission, said to derive from [63] of Basten JA’s judgment:

2. [28]

   Paragraph [63] of Basten JA’s must be read in the context of some preceding paragraphs, as follows:

3. [29]

   At [61], his Honour’s reference to “an order which prohibits public access to existing material” and an “order that there be no public access to that material” and “an order preventing access to a publication on a web site” must mean an order directed to the person or entity in possession or control of the material, in a library or on a website, specifying the material and requiring that the person or entity take steps to prevent members of the public having access to it. His Honour would not have intended to suggest by this paragraph that an order could be made addressed to members of the public in general, that they should not seek access to the material. An order such as that would have similar scope to the order that had been made in the District Court and that Basten JA said was beyond the power conferred by s 7 of the Act. Subject to naming the media organisations that control the websites on which the impugned articles are accessible in the present case, the order sought by the applicant is in a form that Basten JA said (at [61]) would be permitted under the general law and that would “clearly fall within the scope of s 7”.

4. [30]

   To reconcile [61] with the first highlighted sentence in the quotation of [63] set out above, that sentence must be read as referring to a generalised order, directed to all and sundry, requiring that private individuals remove material from potential access by a juror, without naming any particular private individual in possession of such material or specifying any particular item that is, at the time of the order, published on the internet or that may be so published in the future. That is the type of order, exemplified by the order under appeal in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim, that Basten JA was referring to when his Honour said, in effect, that the language of s 7 was inapt to have expanded the courts’ powers to permit the making of such a sweeping, broadly directed prohibition. That understanding of [63] of the judgment is supported by [101] (quoted at [17] above).

5. [31]

   Contrary to Mr Lewis’ submission quoted at [27] above, Basten JA did not hold that the Court lacks authority under s 7 to make a “peremptory order against unrelated third parties”. (The word “peremptory” appears at [63] but his Honour may well have intended “pre-emptive”: cf [101]). What his Honour identified as beyond power was an order in the form that had been made in that case by the District Court, providing that “there is to be” no publication. As his Honour said at [63], that had the effect of “requiring private individuals or other entities unconnected with the administration of justice” to remove material from potential juror access, without naming the individuals or entities who would have to comply and without specifying the material (see [101]).

6. [32]

   I also do not accept Mr Lewis’ submission that the applicant’s notice of motion seeks “an exercise of inherent power concurrently with section 7”. The applicant is simply invoking the Act. The principal judgment in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim must be read with an understanding of the very wide order that was set aside in that appeal, in contrast with the distinctly narrower order that is presently sought. Mr Alex’s proposed orders do not suffer from the overreach to which Basten JA referred in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim at [72]-[74]. He has specified the articles to which access should be denied and their URLs. The controllers of the relevant websites and content are known and the claimed order could readily be framed as directed to them by name.

Risk of interference with the trial in this case

1. [33]

   When the unsustainable submissions made on behalf of the media proprietors are put aside, the question of whether the order now claimed is “necessary” turns upon the considerations nominated by Basten JA at [46], [51] and [100].

2. [34]

   In the present trial, before being selected and sworn or affirmed the jurors in waiting were informed by me that if selected they would be subject to s 68C of the Jury Act. Subsection (1) of s 68C was read to them. The following are extracts from the information that was given to the panel for their consideration in determining whether they should apply to be excused if they did not think they could abide by the applicable constraints (at T 10-11):

3. [35]

   Once the jury had been selected and sworn or affirmed and the accused had been put in their charge, in preliminary instructions about the course of the trial I reminded the jury in the following terms (at T 27):

4. [36]

   Again, the jury were reminded at the end of the first day, upon being released for the afternoon:

5. [37]

   At the end of the third day of the trial, after prosecuting counsel had been opening the Crown case for two and a half days, I returned to the subject just before releasing the jury late in the afternoon. I re-stated to the jury that it would be an offence contrary to s 68C of the Jury Act for any of them to make independent inquiries, including by search of the internet. I repeated the considerations of fairness underlying the duty to decide the case only on the evidence received in court and explained once more how non-compliance with that direction could lead to discharge of the whole jury at great cost, in terms of public finance and disruption. I added the following (at T178):

6. [38]

   Once more, before being released for the weekend at the end of the fifth day, the jury were briefly reminded of my earlier directions, in the following terms:

7. [39]

   The notice of motion now before me is to be decided on the assumption that jurors will conduct themselves in accordance with the directions of the presiding judge. That assumption was expressed by Mason CJ and Toohey J in The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592 at p 603 as follows:

8. [40]

   In that case a majority in the Full Court of the of the Victorian Supreme Court (McGarvie and Nathan JJ) had upheld the respondent’s appeal against conviction on the ground that there was a substantial risk that some members of the jury had become aware of his prior convictions as a result of pre-trial publicity. Brennan J (Dawson J agreeing) said this of the judgment of McGarvie J:

9. [41]

   There have been isolated instances of jurors in this State undertaking internet research despite the trial judge’s directions and in contravention of the statutory prohibition. I accept the applicant’s submission that there is a higher chance of that occurring in a long trial, such as this is expected to be, than would be the case in a trial of normal length, occupying a few days to a few weeks. I do not consider that the nature of the charges provides any greater than usual temptation for jurors to see what they can find on the internet.

10. [42]

    Removal of internet access to the articles identified in the present application would reduce the chances of a juror finding, by search, prejudicial material concerning the applicant, but it would not eliminate the possibility. It is a matter of common knowledge derived from experience of conducting internet searches that the content of news items is frequently copied, or extracted, or quoted and commented upon, resulting in the same material or derivatives of it being accessible at sites other than those of the media organisation that originally published the matter. This is not to say that the order sought would be entirely futile but I cannot be satisfied that it would be of significant utility in reducing the prospect that any improper search by a juror would bring up prejudicial results.

11. [43]

    Even assuming that blocking internet access to the impugned articles may reduce the likelihood that an internet search using terms related to the applicant would produce anything capable of influencing a juror, the removal of access would not have any effect upon the likelihood that one of the jurors would make the attempt; that is, undertake a search. Searching the internet, irrespective of results, would be misconduct in breach of s 68C. The proposed take down order could not reduce the risk that such misconduct would occur and it therefore could not reduce the risk of consequent discharge of an individual juror.

12. [44]

    Relevant extracts from ss 53A and 68C of the Jury Act are as follows:

13. [45]

    The inflexibility of s 53A is unfortunate. It denies to the trial judge any discretion to retain an offending juror even if his or her searches fail to produce anything that could conceivably influence the person’s decision. It leaves no discretion in the trial judge to retain such a juror in circumstances where the judge might be confident that a suitable direction would persuade the juror that such material as he or she may have found on the web was of no relevance or no weight.

14. [46]

    The catastrophic worst-case consequence of a juror finding something prejudicial to the applicant on the internet, as submitted by counsel on his behalf, is that it might be found necessary to abort the trial. However, it is by no means inevitable that that would follow. Unlike the mandatory discharge of an offending juror, the decision whether to continue to verdict with the other jurors would be a matter for the trial judge’s discretionary judgment, applying ss 22 and 53C of the Jury Act. The exercise of that discretion would depend upon such factors as the nature of the material, if any, that the improper search may have produced, the extent to which it may have been discussed or shared with other jurors, the stage of the trial, an assessment of the conscientiousness of the remaining jurors (possibly aided by questioning of them individually) and whether the circumstances would permit an effective direction to the remaining jurors to determine the issues solely on the evidence adduced in court. The question whether the takedown order is “necessary to prevent prejudice to the proper administration of justice” is not to be assessed upon the basis that, if a juror should find one or more of the identified articles, termination of the trial would inexorably follow.

15. [47]

    For these reasons I am not satisfied that the ground in s 8(1)(a) of the Court Suppression and Non-Publication Orders Act is established. The following order will be entered: