Falconio case update

The Falconio murder committal hearing remains “on hold” this afternoon, as barristers for the Nine Network, Murdoch Group, DPP and defendant Bradley John Murdoch (no relation to Rupert as far as I know) continue to argue before a Full Bench of the Supreme Court about whether Magistrate McGregor had jurisdiction to make a suppression order in relation to the publication of certain evidence to be given during the committal.

The whole fiasco raises a range of issues, and my own views are a bit mixed (some might say confused).

On the one hand, as DPP Rex Wild QC submitted to the Supreme Court:

THE Peter Falconio murder case might end up having to be abandoned if the Nine Network succeeds in lifting a suppression order stopping part of the evidence being publicised in the Northern Territory, Director of Public Prosecutions Rex Wild QC told Darwin’s Supreme Court yesterday.

If Nine wins its appeal, evidence allegedly linking Bradley John Murdoch with the murder of British backpacker Falconio and an assault on his girlfriend, Joanne Lees, could be heard by potential jurors, and the whole case could be permanently derailed, he said. …

Mr Wild’s fear is that if the media are able to report all the evidence in the Northern Territory from the committal case, Murdoch’s lawyers will argue he won’t be able to receive a fair trial. For Nine, John Reeves QC said the magistrate didn’t have the power to issue a suppression order in the case and, even if he did, then the material had to be exceptional to justify it. The appeal hear ing will continue today.

You don’t have to be Einstein to work out that this is exactly what Bradley Murdoch’s lawyer will argue if the media is allowed to report all the evidence given at the committal. Moreover, although the still-current suppression order prevents me from discussing the exact or even general nature of the suppressed evidence, I reckon that an argument that Murdoch would not be able to receive a fair trial in those circumstances would have a fair chance of succeeding.

However, as Justice Michael Kirby observed many years ago in an appeal against a suppression order in somewhat different circumstances:

The normal rule of our courts is that justice is administered in a court open to the public where the names of the parties are openly revealed and may be the subject of fair and accurate reports without fear of prosecution for contempt or action for defamation or other civil wrong. This rule, which we have inherited from the common law of England, has been described as an “inveterate” rule of our system of justice … It was the fear of secret trials, and some experience in their misuse, which led to the deeply ingrained prejudice in favour of open justice in England. …

Wholly secret trials, unknown to friends and unreported to the community, has been such a feature of the oppressive r©gimes of recent memory as to reinforce, in this generation, the wisdom of the common law principle of openness and publicity in the administration of justice. We should not assume that Australian society is immune from the erosion of this feature of our liberties … The courts, as protectors of such abiding freedoms, must be ever vigilant against derogations from them. They should confine such derogations to those strictly permitted by the common law or allowed under the clear authority of Parliament. However well meaning the derogations may be in particular cases, history, and not only ancient history, demonstrates the way in which exceptions can multiply and the principle of the open administration of justice, publicly reported, can be destroyed.

Nevertheless, and despite Justice Kirby’s ringing invocation of abiding freedoms, there are some pretty good reasons why the suppression order might well be regarded as appropriate in this case:

  • First, there’s the DPP’s credible argument that the eventual criminal trial might ultimately be thwarted because Murdoch’s lawyers could argue that he ia unable to get a fair trial as a result of prior publication of evidence causing the jury to be “tainted”. As I observed, such an argument might well have some force after such a publication. At the very least, the public interest in an open system of criminal justice needs to be weighed against the equal public interest in ensuring that the system isn’t completely thwarted in a particular case.
  • Second, it’s not as if the evidence will (necessarily) remain secret for evermore. If it’s admitted into evidence on trial, it will certainly be able to be reported. Even in the interim, media and others will be able to observe the committal proceedings and satisfy themselves that justice isn’t being perverted; they just can’t report certain parts of those proceedings while the suppression order remains in force. Ironically, and as Mr Wild QC has already foreshadowed, the result of success by the Nine Network before the Full Court might indeed be that the committal proceedings will be removed completely from the public gaze. Mr Wild has indicated that if Nine’s argument that the magistrate lacked power to order suppression under section 58 of the Evidence Act happens to succeed, he would be forced to make an application to close the court under section 107 of the Justices Act. If that application succeeded (as I suspect it would), then all public scrutiny of the committal hearing would be prevented.
  • Lastly, Justice Kirby’s argument that the scope of suppression orders should be limited to “those strictly permitted by the common law or allowed under the clear authority of Parliamentarguably doesn’t cause a problem in this case. However, there’s the rub. Section 58 reads:

    Where, in the course of any proceeding before any Court, witnesses are ordered out of Court, and it appears to the Court that, for the furtherance or otherwise in the interests of the administration of justice, it is desirable to prohibit for any period the publication of any evidence given or used in the proceeding, the Court may make an order forbidding, for such period as the Court thinks fit, the publication of the evidence or any specified part thereof.

    My general understanding of the Nine Network’s argument (I haven’t been in court to hear it presented in detail) is that the section only authorises the suppression of the evidence itself, and only when witnesses have actually been ordered out of court, and that it doesn’t permit suppression of mere references to the evidence to be given, made in counsel’s opening addresses (as opposed to the actual evidence itself). Nine’s fallback argument is that the power to make suppression orders is only to be exercised in exceptional circumstances, and that the magistrate’s discretion was wrongly exercised in this case because such circumstances don’t exist in the Falconio case.

    My own “gut” reaction to that argument is that a power to order suppression of publication of evidence should be interpreted to include a power to suppress publication of incidental references to that evidence during the course of the proceedings, otherwise the clear statutory purpose is frustrated. On the other hand, if the order was actually made at the outset of the hearing prior to witnesses being ordered out of the courtroom (I don’t know whether that’s the case or not), Nine’s case may well have more “legs”. Fairly clearly, the section does expressly require that witnesses must have been ordered out. Nevertheless, it might well be that a victory by Nine on only that narrow basis would be somewhat pointless. On the face of it, there’d be nothing to prevent the parties from asking the magistrate to order witnesses out of the courtroom (if such an order isn’t already in force), followed immediately by a renewal of the suppression order, which would pretty much leave the media exactly where it is now. As for the argument that the magistrate’s exercise of discretion miscarried, the usual principle is that the Full Court would only interfere with it if he was clearly and manifestly wrong (which I doubt it’s possible to say at this point of the proceedings).

  • Of course, the real problem from a practical viewpoint is that all this delay is costing a fortune, and causing enormous stress and anguish to the (alleged) victim Joanne Lees, other witnesses and the defendant. You really do have to wonder what overwhelming principle the Nine Network is fighting to protect, other than its imagined God-given right to publish whatever it damn well pleases irrespective of the consequences. I should note, on the other hand, that at least one of the Supreme Court Justices is reported to have expressed (during argument) some displeasure at what he saw as an unholy alliance between Prosecution and Defence to stitch up a cosy deal prior to commencement of the proceedings that would thwart the public’s right to know about the proceedings.

I’ll update this post when the Full Court’s decision is handed down (possibly before the end of the afternoon). Incidentally, at this stage it seems likely that I’ll have the dubious privilege of commenting on the case on ABC TV 7.30 Report after the Full Court decision is handed down. However, I’m modestly trying to persuade them to find some other legal eagle “talking head” instead, not least because I’m not especially expert in this area of law.

Update on the update – The Full Court didn’t hand down is decision this afternoon, but apparently will do so first thing tomorrow morning.

Update on the update on the update – The Full Court rejected Nine’s appeal, finding that magistrate McGregor DID have power to make the suppression order. Joanne Lees’ evidence will now continue, and she will probably be cross-examined by Murdoch’s counsel starting this afternoon.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Crocodylus
Crocodylus
2022 years ago

“However, I’m modestly trying to persuade them to find some other legal eagle “talking head” instead, not least because I’m not especially expert in this area of law.”

And since when has that stopped you from commenting in the past on topics outside public law?!

I found your views above quite thought-provoking in fact, and look forward to learning the outcome of the Supreme Court’s decision at some stage today.

Croc

Ken Parish
Ken Parish
2022 years ago

Croc,

It’s one thing commentating on broader legal issues on a blog, where (just about) everyone understands that the rules of the medium allow you to shoot from the hip and occasionally get it wrong, but quite another if you’re presented in the mainstream media as a legal expert. I’ve told the ABC that I would not want to comment on issues relating to criminal law and evidence, because those are not my areas of specialisation.