Balancing the Right to Freedom of Expression against the Right to a Fair Hearing

General Television Corporation Pty Ltd v DPP & Anor [2008] VSCA 49 (26 March 2008) In a recent decision, the Victorian Court of Appeal (Warren CJ, Vincent and Kellam JJA) considered the jurisdiction of a trial judge to make suppression orders to restrain an apprehended contempt of court.  In doing so, it discussed issues that will be relevant in balancing the Charter right to freedom of expression (protected by s 15) against the right to a fair hearing (protected by s 24).

Facts

The trial of ‘A’ for the murder of ‘B’ commenced in the Supreme Court of Victoria earlier this year.  The murder was allegedly committed in connection with the so-called ‘Gangland Wars’.  General Television Corporation proposed to commence broadcasting the television series Underbelly on Channel 9 from 13 February 2008, and the broadcast of some episodes would have overlapped with A’s trial.  The series depicts events associated with the Gangland Wars, including the death of B, and was said to contain both factual and fictional elements.

At the prosecution’s request, King J viewed 12 of the 13 episodes of the series, and found that it would be ‘very difficult’ for members of the public (and in particular potential jurors in A’s trial) to differentiate between its factual and fictional elements.  It was of particular concern that the series corroborated the evidence of an accomplice who would give evidence at A’s trial.

King J formed the view that the broadcast of the series would strongly prejudice A’s forthcoming trial.  Her Honour did not consider it practical to delay the trial until the prejudicial effect of the broadcast had dissipated.  Her Honour therefore made orders prohibiting the publication of the series, and the publication of related internet materials, until the completion of A’s trial.  GTV appealed to the Victorian Court of Appeal.

Decision

On appeal, GTV’s primary argument was that in making the orders, the Supreme Court had exceeded its jurisdiction.  The Court of Appeal rejected this argument, holding that King J had an inherent jurisdiction to make such orders as were necessary to ensure the fairness of A’s trial.  This power extends beyond making orders prohibiting the publication of reports of court proceedings (commonly known as suppression orders), and includes making broader orders restraining the publication of extrinsic materials that may prejudice A’s trial.  The basis of this jurisdiction is the Supreme Court’s power to restrain apprehended contempts of court.  The Court of Appeal saw no reason to disturb her Honour’s finding that the mixing of fact and fiction in the series, including in relation to the events surrounding B’s death, posed a serious risk to the fairness of A’s trial.

GTV also argued that King J erred in failing to have regard to ss 7 and 15 of the Charter.  Section 7 is often referred to as the ‘general limitation’ clause.  It provides that the rights protected by the Charter may only be subject to such limits as can be demonstrably justified in a free and democratic society.  Section 15 of the Charter protects the right to freedom of expression.

This ground was ultimately abandoned during argument before the Court of Appeal.  Nonetheless, the Court noted by way of obiter dicta that even if it were open to GTV to rely upon the Charter right to freedom of expression (which the Court considered unlikely), the Court would have adopted the view taken in Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563.  In that case, the New Zealand Court of Appeal held that where it is not possible to simultaneously give full effect to the rights to freedom of expression and a fair trial, ‘it is appropriate in our free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial.’

However, GTV’s appeal was allowed in part, with the Court of Appeal holding that King J’s orders were too wide.  It recast the orders to prohibit GTV (as opposed to the world at large) from publishing the series and related internet materials.  It nonetheless cautioned others that any person with knowledge of the orders who saw fit to publish the series or internet materials would run a grave risk of committing a contempt of court.

Relevance for the Victorian Charter

Ultimately, this case was not decided on Charter grounds.  However, the decision does provide some guidance as to how Victorian courts may in future balance the competing Charter rights to freedom of expression and a fair hearing.

Where these rights conflict, it appears likely that the right to freedom of expression will be limited to the extent necessary to preserve a person’s right to a fair hearing.  This will particularly be so where the expression in question is in the nature of entertainment, rather than the reporting of news or the discussion of public affairs.

It is notable that the scope and application of the right to freedom of expression in a commercial context has recently been considered by the UK Court of Appeal (see Boehringer Ingelheim Limited v Vetplus Limited [2007] EWCA Civ 583 (20 June 2007)) and the Supreme Court of Canada (see Canada v JTI-Macdonald Corp 2007 SCC 30 (28 June 2007)).  While neither court recognised a ‘corporate right’ to freedom of expression, both cases held that the right may be engaged by expression about commercial matters and, moreover, that the public have a prima facie right to ‘hear’ the expression (as opposed to a corporation having a right to ‘express’ the information).  It is clear from both cases, however, that freedom of expression about commercial matters will be afforded a lower threshold of protection than expression about socio-political matters.

The full text decision is available at http://www.austlii.edu.au/au/cases/vic/VSCA/2008/49.html.

Daniel Perkins is a lawyer in the Workplace Relations practice group at Corrs Chambers Westgarth