R v PERISH; R v LAWTON; R v PERISH [2011] NSWSC 1101

R v PERISH; R v LAWTON; R v PERISH [2011] NSWSC 1101

The test of necessity, applied with strictness due to the conflict with open justice, was not met for the February articles, as the court was not satisfied to a high degree of certainty that their removal was needed to secure a fair trial—appropriate trial directions suffice to mitigate potential prejudice. However, the prejudicial August 2010 article was required to be removed, and a non-publication order made regarding the current proceedings to protect the fairness of the upcoming trial.

Jurisdiction
Australia
Judgment Date
11 July 2011
Procedural Posture
Criminal / Interlocutory Application
Outcome
Take-down order granted in part, suppression/non-publication order made in part, remainder of application dismissed.
Legal Topics
['suppression Orders' 'non Publication Orders' 'internet Take Down Orders' 'open Justice' 'fair Trial' 'prejudice']
['criminal Law'] ['suppression Orders' 'non Publication Orders' 'internet Take Down Orders' 'open Justice' 'fair Trial' 'prejudice']

Case Brief

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Procedural Posture

Criminal / Interlocutory Application

Legal Issues

  1. 1 ['Whether internet articles should be removed to ensure a fair trial for the accused.' 'Whether the test of necessity for suppression or take-down orders is met in the circumstances.']

Ratio Decidendi

The test of necessity, applied with strictness due to the conflict with open justice, was not met for the February articles, as the court was not satisfied to a high degree of certainty that their removal was needed to secure a fair trial—appropriate trial directions suffice to mitigate potential prejudice. However, the prejudicial August 2010 article was required to be removed, and a non-publication order made regarding the current proceedings to protect the fairness of the upcoming trial.

Court Disposition

Take-down order granted in part, suppression/non-publication order made in part, remainder of application dismissed.

Orders

  • ["Article from Sydney Morning Herald 'Men accused over drug dealer's murder' (6 August 2010) to be immediately removed from all relevant websites and not republished until after verdict or further order." "Matthew Lawton's motion dismissed." 'Evidence, argument, and judgment in these motions not to be published...