AW v R [2016] NSWCCA 227

AW v R [2016] NSWCCA 227

The appeal was dismissed because AW did not show that the proposed take down orders were necessary to prevent prejudice to the proper administration of justice. The evidence did not establish more than a remote risk that jurors would defy directions and conduct independent investigations, and the proposed orders would be futile because relevant articles and information identifying AW in relation to the GoPro allegations would remain accessible on websites outside the orders and there was no evidence about how search engine results would be affected by removing AW's name from selected publications.

Jurisdiction
Australia
Judgment Date
19 October 2016
Procedural Posture
Criminal Appeal Concerning Suppression and Non Publication Orders / Application for Leave to Appeal and Appeal From District Court Dismissal of Application for Take Down Orders
Outcome
Leave to appeal granted; appeal dismissed; non-publication order made for evidence, submissions and judgment until conclusion of AW's trial or further order.
Legal Topics
['court Suppression and Non Publication Orders Act 2010 (nsw)' 'take Down Orders' 'open Justice' 'fair Trial' 'juror Misconduct and Internet Searches' 'prejudice to the Proper Administration of Justice']
['criminal Procedure' 'practice and Procedure' 'suppression and Non Publication Orders'] ['court Suppression and Non Publication Orders Act 2010 (nsw)' 'take Down Orders' 'open Justice' 'fair Trial' 'juror Misconduct and Internet Searches' 'prejudice to the Proper Administration of Justice']

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Procedural Posture

Criminal Appeal Concerning Suppression and Non Publication Orders / Application for Leave to Appeal and Appeal From District Court Dismissal of Application for Take Down Orders

Legal Issues

  1. 1 ['Whether proposed take down orders were necessary to prevent prejudice to the proper administration of justice.' 'Whether there was a sufficient risk that jurors would defy judicial directions by conducting independent internet investigations.' 'Whether the proposed orders would be futile or ineffective because relevant material would remain accessible online outside the terms of the orders.' "Whether the primary judge erred in treating Professor Hunter's Jury Study, delay, and risk of jury investigation as he did."]

Ratio Decidendi

The appeal was dismissed because AW did not show that the proposed take down orders were necessary to prevent prejudice to the proper administration of justice. The evidence did not establish more than a remote risk that jurors would defy directions and conduct independent investigations, and the proposed orders would be futile because relevant articles and information identifying AW in relation to the GoPro allegations would remain accessible on websites outside the orders and there was no evidence about how search engine results would be affected by removing AW's name from selected publications.

Court Disposition

Leave to appeal granted; appeal dismissed; non-publication order made for evidence, submissions and judgment until conclusion of AW's trial or further order.

Orders

  • ['Order, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), that no publication be made of the evidence and submissions in the Court of Criminal Appeal on 23 September 2016 or this judgment until the conclusion of the trial of AW in relation to alleged offences of aggravated sexual...