JUDGES:	MAXWELL P, BEACH and HARGRAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2018
DATE OF JUDGMENT:	14 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 299
RULING APPEALED FROM:	DPP (Cth) v Mohamed & Anor (Unreported, Supreme Court of Victoria, Beale J, 2 November 2018)

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CRIMINAL LAW – Trial – Fair trial – Open justice – Prejudicial publicity – Suppression orders – Whether jury verdicts should be suppressed – Applicants convicted of conspiracy to commit acts in preparation for a terrorist act – No suppression of trial proceedings – Applicants indicted on further charges during trial – Second trial to take place in coming months – Whether suppression of verdicts necessary to prevent ‘real and substantial risk of prejudice’ to proper administration of justice – Whether risk preventable by other means – Trial judge not satisfied of necessity for order – Whether conclusion reasonably open – No error – Leave to appeal refused – Dupas v The Queen (2010) 241 CLR 237 considered – Open Courts Act 2013 ss 17, 18.

PRACTICE AND PROCEDURE – Jurisdiction – Appeal against refusal to make suppression order – Whether leave to appeal required – Interlocutory applications in criminal or quasi-criminal proceedings – Leave to appeal required – News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, Licul v Corney (1976) 180 CLR 213 considered – Supreme Court Act 1986
ss 14A, 17, 17A.

APPEALS – Judicial discretion – Function of appellate court – Principles governing appeal – Discretion to make suppression order – Discretion conditioned on judge’s state of satisfaction as to necessity of order – Judge not so satisfied – Appellate intervention only if conclusion not reasonably open – House v The King (1936) 55 CLR 499, Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 applied – Open Courts Act 2013 ss 17, 18, 18(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Applicant, Chaarani	Mr E M Nekvapil	James Dowsley & Associates
For the Applicant, Mohamed	Mr M D Tehan	Leanne Warren & Associates
For the First Respondent	Mr P J Doyle	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
For the Second, Third and Fifth Respondents (S APCR 2018 0141)	Mr J Quill	Macpherson Kelley
For the Second, Third and Fourth Respondents (S APCR 2018 0142)	Mr J Quill	Macpherson Kelley

MAXWELL P
BEACH JA
HARGRAVE JA:

Summary

Under s 18(1)(a) of the Open Courts Act 2013 (‘Open Courts Act’), a court may make a ‘proceeding suppression order’ if satisfied that the order

is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chaarani v DPP (Cth)

Details

AGLC: Chaarani v DPP (Cth) [2018] VSCA 299
Case: [2018] VSCA 299
Decision Date: 14 November 2018

CaseChat Overview and Summary

In Chaarani v DPP (Cth), the applicants were convicted of conspiracy to commit acts in preparation for a terrorist act. The case raised questions regarding the fair trial and open justice principles, particularly in the context of prejudicial publicity and the potential for suppression orders on jury verdicts. The Supreme Court of Victoria heard an appeal against the refusal to make a suppression order, and the applicants sought leave to appeal this decision. The legal issues before the court involved whether the verdicts should be suppressed to prevent a ‘real and substantial risk of prejudice’ to the proper administration of justice, and whether this risk could be mitigated by other means. The court considered the trial judge's conclusion that no suppression order was necessary, assessing whether this conclusion was reasonably open on the facts of the case. The court found no error in the trial judge's decision, given that the risk of prejudice could be managed without suppressing the verdicts. The applicants' leave to appeal was refused.

The reasoning of the court was grounded in the principles governing appeal and judicial discretion, as articulated in cases such as House v The King and Enfield City Corporation v Development Assessment Commission. The court emphasised that the discretion to make a suppression order is contingent upon the judge’s state of satisfaction regarding the necessity of the order. The trial judge had concluded that the risk of prejudice could be prevented by other means, and the appellate court held that this conclusion was reasonably open. The court also considered statutory provisions under the Open Courts Act 2013, which outline the circumstances in which a suppression order may be made. Ultimately, the court found that the trial judge's decision not to suppress the verdicts was justified, and the appeal was dismissed.

Orders