Munshizada v The Queen; Baines v The Queen; Danishyar v The Queen; Hosseinishoja v The Queen; Shekeb v The Queen; Sultani v The Queen; Abdaly v The Queen

Case •

[2021] NSWCCA 307

•

16 December 2021

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Munshizada v R; Baines v R; Danishyar v R; Hosseinishoja v R; Shekeb v R; Sultani v R; Abdaly v R [2021] NSWCCA 307
Hearing dates: 6 December 2021
Date of orders: 16 December 2021
Decision date: 16 December 2021
Before: Basten JA, Adamson J, Wright J
Decision:

(1)   Grant the applicants leave to appeal from the refusal of Fagan J on 6 December 2021 to extend the non-publication orders.

(2)   Dismiss the appeal.

Catchwords:

CRIMINAL PROCEDURE – suppression and non-publication orders – order made to protect integrity of completed trials in Supreme Court – further trial listed in District Court in two months – refusal to extend order – likelihood of extensive publicity if order lifted – likely prejudice to accused in subsequent trial – weighing principle of open justice and ensuring fairness in forthcoming trial

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 4, 5, 7, 8, 9, 10, 13, 14

Crimes Act 1900 (NSW), ss 93T, 93S

Cases Cited:

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 293 ALR

John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324

Nationwide News Pty Ltd v Qaumi [2016] NSWCCA 97

Category:Principal judgment
Parties:

Siar Munshizada (Applicant)
Joshua Baines (Applicant)
Mirwais Danishyar (Applicant)
Seyed Hosseinishoja (Applicant)
Mustafa Shekeb (Applicant)
Abuzar Sultani (Applicant)
Sayed Anush Abdaly (Applicant)

Director of Public Prosecutions (Respondent)
Fairfax Media Publications Pty Ltd and Nationwide News Pty Ltd (Intervenors)
Representation:

Counsel:
Mr T Woods (Munshizada, Baines)
Mr P Lange (Danishyar, Hosseinishoja; Abdaly, Shekeb)
Ms M Saunders (Solicitor) (Intervenors)
Mr E Balodis (Respondent)

Solicitors:
Jamieson Criminal Law (Munshizada)
K Kyriacou & Co (Baines)
Zahr Partners (Danishyar)
One Group Legal (Hosseinishoja, Shekeb)
Hajje Lawyers (Sultani)
Tohi Lawyers (Abdaly)
Office of the Director of Public Prosecutions (NSW) (Respondent)
Thomson Geer (Intervenor)
File Number(s): 2016/358164; 2016/358034; 2016/358151; 2017/149604; 2018/285015; 2016/358080; 2016/358098; 2016/358130; 2016/381616; 2017/192038
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Common Law Division
Date of Decision:
6 December 2021
Before:
Fagan J
File Number(s):
2016/358164; 2016/358034; 2016/358151; 2016/358098

Judgment

  1. THE COURT: On Monday, 6 December 2021, seven individuals, who had been variously convicted with respect to a number of inter-gang murders, sought to extend orders which had been in force for a number of years prohibiting the publication of information concerning their trials, convictions and, ultimately, sentences. The reason for the proposed continuation of such orders was to protect the fairness of a trial in the District Court involving each of the seven, together with a number of other accused, of offences under s 93T of the Crimes Act 1900 (NSW) involving participation in a criminal group, as defined in s 93S(1). The District Court trial is scheduled to commence on 7 February 2022, that is two months hence.

  2. The extant non-publication orders were made pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“Non-publication Orders Act”). They were initially made to protect the integrity of the jury system so as to allow several back-to-back murder trials to proceed to finality. Those trials were conducted by Fagan J in the Supreme Court. On 26 August 2021, the last trial having been completed, the judge indicated that he proposed to lift the non-publication orders at the time he undertook the sentencing of those who had been convicted. That was due to commence on 6 December 2021.

  3. Somewhat belatedly, on 30 November 2021, a number of the accused in the forthcoming District Court trial, including the seven offenders facing sentencing for murder in the Supreme Court, applied to the judge in charge of that trial, Zahra SC DCJ, for, in effect, a continuation of the non-publication order which had subsisted for some years (and was still on foot) in the Supreme Court. In a carefully reasoned decision, the judge declined to make the order.

  4. On 1 December 2021, several of the offenders in the Supreme Court trials filed notices of appeal in this Court. The matter came before the Court, differently constituted from the present Court, on 3 December 2021. The appeals were dismissed and the Court declined to make interim orders under s 10 of the Non-publication Orders Act, the latter being unnecessary in the light of a further foreshadowed application to be made to Fagan J on Monday, 6 December 2021.

  5. On the morning of 6 December 2021, applications were made to Fagan J under s 13 of the Act seeking an extension of the orders then in force. Fagan J declined to extend the operation of the orders other than a brief extension until 4pm on Monday 6 December to allow the applicants to come before this Court for a second time. As it was patently impossible for this Court to do justice to the arguments presented to it that afternoon, an interim order was made extending the operation of the existing non-publication orders until the determination of the application.

Preliminary matters

  1. three contextual matters

  1. Before addressing the merits of the application, three preliminary observations should be made. First, the application is not patently without merit. If it were appropriate to maintain non-publication orders to protect the integrity of the ongoing trials in the Supreme Court over a period of years, it is clearly arguable that those orders should continue for such further period as is necessary to protect the integrity of a related trial involving the same (and other) parties in the District Court. It may be that the application should fail, but it was not patently hopeless. Because it was foreseeable that the expiry of the current orders would lead to extensive publication concerning the proceedings in the Supreme Court, possibly in a way which would identify the parties with those who are involved in the District Court proceedings, it was necessary to maintain the status quo pending determination of the present applications.

  2. Secondly, there are important issues of principle raised by the procedural steps taken so far, the resolution of which is by no means straightforward. Because the application is concerned with the integrity of the administration of justice in serious criminal proceedings, it is unfortunate that the issues are being addressed in circumstances where the Court has not been able to hear full argument on the issues and, for reasons explained below, could not expect to do so before the trial listed for 7 February 2022.

  3. Thirdly, quite apart from the legal complexities, the Court is not fully apprised of the factual issues which give rise to the applications. As will be explained below, the complex factual circumstances were not articulated in the abbreviated hearing in this Court, nor in written submissions, nor in the earlier judgments of this Court, of Fagan J and of Zahra DCJ.

  1. timing of application

  1. Before turning to the legal issues, it is convenient to explain the temporal constraints under which the Court is operating. Although these are to an extent a consequence of what was, arguably, a belated application by the applicants in the District Court, the issue of the protection of the administration of criminal justice cannot be avoided on the basis that the applicants are the source of their own potential prejudice.

  2. When Fagan J made orders on 26 August 2021, he foreshadowed that the non-publication orders then in force would be lifted when the sentencing hearings were undertaken, which at that stage had been expected to be in September. Such publicity as would then have been expected would have commenced some four months before the listed date for commencement of the District Court trial. It was clearly arguable that the lapse of time, and the summer holiday period, would have significantly dissipated any prejudicial effect on the District Court trial. However, as it has turned out, the sentencing hearings were not conducted in September, but in December. Although the holiday period will still intervene between the sentencing (and anticipated accompanying publicity) and the District Court trial, the period between the two has been more than halved.

  3. Thus, the maintenance of the non-publication order until 6 December 2021 had the effect of ensuring that the foreseeable sensational publicity would be closer to the commencement of the District Court trial. No doubt the sentencing hearings would in any event have stimulated further publicity had the order been lifted earlier. As will be noted below, so far as the available judgments are concerned (all of which were undertaken in circumstances of considerable urgency) little weight appears to have been given to that consideration.

  4. If publicity is permitted, it remains available to the trial judge in the District Court to entertain an application for an adjournment of those proceedings to allow any prejudicial effect of the publicity to dissipate, or even an application for a non-jury trial. However, those solutions give rise to their own difficulties with respect to the administration of justice. With respect to the latter possibility, there are important constraints on the availability of judge-alone trials for serious indictable offences. It is self-evidently undesirable that offenders be deprived of their right to a trial by jury if that can be avoided by removing the cause of potential prejudice.

  5. There are potential difficulties with the vacation of the scheduled date for commencement of the district Court trial. Two should be noted. So far as the accused are concerned, some will be in custody serving sentences which have already been imposed. However, this Court does not know whether that is true of all the accused in the District Court trial. It is possible (perhaps likely) that some may have been held in custody on remand for a significant period already. If a further extension of that period can be avoided, steps should be taken to achieve that end.

  6. The second concern is that, as presently planned, early 2022 is the time when the District Court will commence the formidable task of reducing the backlog of criminal trials which has resulted from the pandemic. It may be assumed that in listing trials, careful consideration has already been given to questions of priority. If the vacation of trial dates can be avoided, there is good reason in the public interest to ensure that steps are taken to that end.

Legal background

  1. On one view, the present appeal could be refused without resolving the difficult legal issues which appear to have arisen. That could be justified on the basis that the District Court judge responsible for the trial listed in February has declined to make non-publication orders; the trial judge in the Supreme Court who made the orders presently in place has declined to extend them, and this Court, hearing an appeal from the District Court judgment, declined to intervene. To those matters may be added the fact that the Director of Public Prosecutions does not seek the extension of the present orders. However, it would not be appropriate for this Court to adopt that approach without resolving the question of where responsibility lies for making or continuing non-publication orders in the present circumstances. It is necessary therefore to consider the statutory and non-statutory availability of power to make non-publication orders.

  2. Prior to the commencement of the Non-publication Orders Act on 1 July 2011, there were no fewer than 20 State laws which conferred similar powers. These were preserved by s 5 of the Non-publication Orders Act. Similarly, the general inherent jurisdiction of courts was not affected: see s 4. Importantly for present purposes, however, prior to the commencement of the Non-publication Orders Act, the District Court of New South Wales had limited powers to protect the administration of justice. These have been described as restricted to those which are “expressly conferred on it or as are necessarily implied from the express conferral of jurisdiction upon and grant of powers to the Court.”[1] One consequence was that no issue was then likely to arise as to the power of a District Court judge to make orders affecting the publication of things which happened in the Supreme Court, including verdicts, judgment and the giving of evidence.

    1. John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 at [24] (Spigelman CJ, Handley JA and M W Campbell AJA agreeing).

  3. Secondly, although, as discussed in John Fairfax Publications,[2] the Supreme Court had inherent jurisdiction to take steps to protect the administration of justice in courts throughout the State, that jurisdiction is less likely to be invoked in relation to other courts which now have powers under the Non-publication Orders Act. (It is also less commonly invoked in the Supreme Court, given the conferral of statutory powers.) Nevertheless, because it is said that the Non-publication Orders Act “does not limit or otherwise affect any inherent jurisdiction or any powers that a court has apart from this Act to regulate its proceedings or to deal with a contempt of the court”,[3] principles established with respect to the operation of the inherent jurisdiction remain relevant and, in large part, applicable under the statutory scheme.

    2. See fn 1 above.

    3. Non-publication Orders Act, s 4.

  4. It was well-established with respect to the inherent jurisdiction that, as expressed in s 6 of the Act, “a primary objective of the administration of justice is to safeguard the public interest in open justice.” Further, as stated by Spigelman CJ in John Fairfax Publications:

“[20]   The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. (See, for example, Attorney General v Leveller Magazine Ltd [1979] AC 440 at 450.)

[21]   From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, for example, Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D–E and 54G.)”

  1. It is also true that the principle of open justice provides an important, some might say fundamental, protection to another underlying principle, that is the principle of a fair trial. Spigelman CJ described that in John Fairfax Publications in the following terms:

“[22]   The principle of a fair trial has been characterised in numerous High Court judgments in the most forceful of terms. It has been described as ‘the central thesis of the administration of criminal justice’: McKinney v The Queen (1991) 171 CLR 468 at 478; as ‘the central prescript of our criminal law’: Jago; as a ‘fundamental element’ or a ‘fundamental prescript’: Dietrich v The Queen (1992) 177 CLR 292 at 299, 326; and as an overriding requirement: Dietrich. It is not a new principle. As Isaacs J put it in 1923 with reference to ‘the elementary right of every accused person to a fair and impartial trial’: ‘Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle’: R v MacFarlane; Ex parte O'Flanagan & O'Kelly (1923) 32 CLR 518 at 541–542.

[23]   There is no aspect of preparation for trial or of criminal procedure which is not touched by, or indeed determined by, the principle of a fair trial. As Lord Devlin once put it: ‘… [N]early the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their power to see that what was fair and just was done between prosecutors and accuseds’: Connelly v Director of Public Prosecutions [1964] AC 1254 at 1347.”

  1. The central issue in the present case arises from the fact that the application of the principle of open justice in respect of one trial may compromise the fairness of another trial. That dilemma is recognised every time this Court orders a retrial and withholds publication of its judgment pending the conclusion of the retrial. That arises from a concern that the analysis of the evidence and the strength of the prosecution case by three judges of the highest court in the State might, if generally available, affect the thinking of the jury in the second trial.

  2. The factors which may influence a fair trial in the pending District Court proceedings are threefold, namely:

  1. the simple disclosure that some of the accused had been convicted of murder;

  2. public disclosure of the evidence concerning the involvement of the accused and possible witnesses in the District Court trial in the planning, preparation and carrying out of brutal murders; and

  3. the fact-finding undertaken by the trial judge for the purpose of sentencing those of the accused who were convicted.

Arguably, given that a jury verdict is devoid of fact-finding, it is the last of the factors which is the most likely to prejudice a fair trial.

  1. The conferral of power under the Non-publication Orders Act is found in s 7:

7   Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of—

(a)   information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b)   information that comprises evidence, or information about evidence, given in proceedings before the court.

  1. The bases upon which a non-publication order can be made are identified in s 8:

8   Grounds for making an order

(1)   A court may make a suppression order or non-publication order on one or more of the following grounds—

(a)   the order is necessary to prevent prejudice to the proper administration of justice,

(b)   the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c)   the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900),

(e)   it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2)   A suppression order or non-publication order must specify the ground or grounds on which the order is made.

(3)   Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

  1. Paragraphs (b), (c) and (d) of s 8(1) are not engaged in the present case: their primary purpose is to protect witnesses and parties in proceedings, or otherwise prevent the disclosure of evidence. Nor is it necessary to consider the circumstances in which par (e) may be engaged. The only directly relevant ground is par (a), so that the order may not be made unless it is “necessary to prevent prejudice to the proper administration of justice.” In the present case the only question is whether an order is necessary to ensure a fair trial of the matter listed in the District Court in February 2022.

  1. Section 9(1) provides that the court may make an order on its own initiative, or on the application of “a party to the proceedings concerned” or “any other person considered by the court to have a sufficient interest in the making of the order”. A news media organisation is entitled to be heard on an application for such an order: s 9(2)(d). Two major news organisations were heard in opposition to the making of the order in the present case.

  2. Section 10 provides that the court may make an interim suppression or non-publication order, without determining the merits of the application, but if it does so, it must determine the application as a matter of urgency: s 10. This obligation underlies the delivery of this judgment.

  3. Section 14 provides for an appeal against a decision of the court with respect to a suppression or non-publication order, to be made with leave of the court. The relevant appellate jurisdiction is vested in this Court, both with respect to an order made in the District Court and an order made by a judge of the Supreme Court, because appeals would lie from final orders made by those courts in the exercise of their criminal jurisdiction.

Issues raised by appeal

  1. powers of District Court

  1. A beneficial effect of the Non-publication Orders Act has been to allow a trial court to exercise proper control for the protection of its own proceedings. By virtue of the definition of “court” in s 3, the Act applies in the Supreme Court, the Land and Environment Court, the District Court, the Local Court and the Children’s Court. However, it is tolerably clear that, at least to the extent that the relevant ground for an order is s 8(1)(a), the power conferred by s 7 is for the purpose of protecting the administration of justice in the court making the order. Consistently with that approach, it is clear that the orders made by Fagan J in the Supreme Court were designed to protect the integrity of the trials occurring in the Supreme Court; the application to Zahra DCJ was made on the basis of protecting the proper administration of justice in relation to the forthcoming trial in the District Court. On that view, the statute did not permit Fagan J to make an order which had the effect of protecting the administration of justice in the District Court. That is not to say that Fagan J could not have made such an order, but rather that the source of jurisdiction would be found in the inherent jurisdiction of the Supreme Court, not the Act. It is not clear that that jurisdiction was invoked (nor need it have been) to protect the administration of justice in the Supreme Court itself.

  2. The great benefit of conferring power on the trial court to protect its own jurisdiction is that the judge in that court is most likely to be fully apprised of the nature of the issues which will arise on the trial. That will involve practical considerations as to likely forensic strategies, as well as knowledge of the proposed evidence and the names of the witnesses. In the present case, a Crown Case Statement of more than 400 pages has been filed in the District Court. Although the document was made available to this Court on the appeal from Zahra DCJ, it does not appear from the reasons given that the Court was taken to that material, or that it played any part in the Court’s assessment of the appeal. Rather, the appeal proceeded on the basis that the applicants had inappropriately sought an order from the trial judge in the District Court which would have had the effect of countermanding an order made by a judge in the Supreme Court, as to which the applicants had not sought a review, and from which there had been no appeal. All members of the Court on 3 December 2021 expressed views as to the impropriety in seeking to obtain an order from the District Court in such circumstances.

  3. Because Zahra DCJ had not made orders in the terms sought by the applicants, no question as to inconsistency arose. However, this Court was impliedly critical of the District Court for accepting that the power was available in circumstances where its exercise would prevent a publication of proceedings in the Supreme Court which was to be permitted by the judge conducting the trial in the Supreme Court.

  4. There is no doubt that, had Judge Zahra otherwise been minded to make non-publication orders, that dilemma would have eventuated. However, the resolution of the dilemma is by no means easy, merely as a matter of statutory construction. A power conferred on a judge in the District Court in these circumstances was to prohibit or restrict the publication of “information … concerning any party to or witness in proceedings before the court”. The term “information” is defined in the Non-publication Orders Act to include “any document”: s 3. It is difficult to avoid the conclusion that the problem of inconsistent orders is not to be resolved by reading down the power conferred by s 7.

  5. On one view, it might be possible to read down the term “information” as not extending to a verdict or reasons for judgment of, or evidence given in, another court. However, the effect of that would be to prevent publication of a judgment or committal proceedings in the Local Court, to protect a trial or an appeal in the District Court, and it would prevent a non-publication order in relation to proceedings which had long since been completed and in relation to which there had been no order or refusal of an application for such an order, in the Supreme Court. Yet the republication of salacious material from the earlier trial might have a devastating effect on the fairness of a later trial involving the same offender. Such a reading is not plausible. The word “information” might be read so as to exclude only information resulting from a judgment of a higher court in the judicial hierarchy. However, in truth the Non-publication Orders Act says nothing about the inter-relationship between the powers of the various courts acting to protect their own functions.

  6. The situation which arose in the present case is striking because proceedings in both the Supreme Court and the District Court were on foot at the same time. No doubt, even though made for different purposes, conflicting orders should properly be avoided. However, it is by no means clear that the application made to the District Court judge was inappropriate or improper. Judge Zahra clearly did not think so. Had he been minded to make an order in order to protect the administration of justice in his court, some further application to the Supreme Court would have been appropriate. However, the Supreme Court judge would not have had power to make an order in relation to proceedings in the District Court inconsistent with the order of the District Court judge, from whose order no appeal lay to a single judge in the Supreme Court. It might rather have been expected that the Supreme Court judge would have exercised a review of his own order to make it clear that his refusal to make such an order was not inconsistent with the order made by the District Court.

  7. It is not necessary to resolve these issues, as they are hypothetical in the present case. What in fact happened was that Fagan J was invited to review his decision of 26 August 2021 to extend the non-publication order made with respect to the Supreme Court proceedings. He declined to take that step and the present matter before this Court is an appeal from that decision. The issue of the District Court’s role remains relevant, however, because if the applicants have a meritorious case, it is at least arguable that this Court is not in a good position to rule upon it and that it is the trial judge in the District Court whose decision should govern.

  8. The last step in the reasoning indicates that, although there is no appeal from the District Court, the appeal having been abandoned by consent on 3 December, it is necessary to consider whether the matter should nevertheless be returned to the District Court.

  1. reasoning of Zahra DCJ

  1. Before turning to the judgment of Zahra DCJ, reference should be made to the hearing which occurred on 30 November 2021. The hearing was conducted by AVL and commenced with the judge noting the difficulties under which he was labouring. He was then part-heard in a jury matter. Further, although the notice of motion seeking non-publication orders had been filed on 1 November, only two parties had provided material to him, “a matter of days ago.” [4] It was not merely a matter of discourtesy; it imposed an extraordinary pressure on the judge knowing that the matter was likely to go on appeal and that the existing orders would terminate on 6 December. Further, although a question of power with respect to s 7 was raised, as was the question of “comity” as between orders of the District Court and those made in the Supreme Court, only one counsel engaged with the argument concerning the operation of s 7. [5]

    4. Tcpt, 30/11/21, p 5(35).

    5. Tcpt, 30/11/21, p 10(25)-(30) (Mr Lange).

  2. Judge Zahra accepted that he had a power to make the orders sought (apparently relying on the “implied” jurisdiction of the Court, rather than the Act [6] ). He also held that he was “not bound by the decision of Fagan J and the application … must be considered on its merits.” [7] Judge Zahra outlined the case for the applicants, which may be summarised in the following terms:

    6. Judgment, pp 11 and 16.

    7. Judgment, p 12.

  1. the sentencing proceedings before the Supreme Court would attract heavy media interest;

  2. the nature of the media scrutiny could be determined by reference to the publications at the time the applicants were arrested, [8] which was identified as not “normal publicity” because of its “nature and volume” and its “sensational nature”; [9]

  3. potential jurors in the District Court trial in February would therefore be exposed to significant levels of media reporting so that “the potential jury pool will be … saturated with prejudicial information about the accused”; [10]

  4. standard directions would not suffice to prevent prejudice and specific directions would simply draw attention to the very matter which was sought to be discounted; [11]

  5. the consequence would be a necessary adjournment of the trial to allow dissipation of media interest which would itself be prejudicial to the applicants whose trial had already been delayed by the impact of the pandemic; [12] and

  6. if the non-publication orders had been justifiable for a number of years whilst the Supreme Court trials were on foot, it was justifiable to defer publication of material relating to the murder trials to protect the applicants’ right to a fair trial in the District Court.

    8. Judgment, p 3.

    9. Judgment, p 13.

    10. Judgment, pp 3 and 14.

    11. Judgment, pp 3 and 10.

    12. Judgment, p 5.

  1. Judge Zahra’s reasons relied upon the following propositions: [13]

    13. Judgment, pp 15-16.

  1. Fagan J had a “full appreciation of the extensive and likely sensational nature of the reporting that would follow the lifting of the orders”;

  2. the orders had been in place for a lengthy period of time, a matter of five years;

  3. when determining to lift the orders, Fagan J “would have had an understanding of the evidence to be led in the Criminal Group trial as the evidence of the operation of the Sultani criminal group was intertwined or interconnected with the evidence led in the murder trials”;

  4. Fagan J concluded that the continuation of the suppression orders was not necessary and that the District Court would be able in the light of the expected publicity to implement remedies including adjourning the trial or staying the trial.

  1. In the final paragraph of his reasons Judge Zahra found that “[t]he extent and nature of the expected publicity will cause significant prejudice to the accused in the Criminal Group trial” but that, nevertheless, a non-publication order was not necessary. There appears to be a missing step in the reasoning, which may be found in a passage in the transcript of oral argument, where the judge said to counsel, “…so far as the extent of the publicity is concerned … [Fagan J] would’ve been appraised [of] … the type of prejudice that will arise here and obviously his ultimate determination was that accepting that prejudice would arise in this trial that open justice dictated that the non-publication order be lifted.” [14] Judge Zahra said he agreed with that reasoning.

    14. DC Tcpt, 30/11/2021, pp 26-27.

  2. Otherwise three aspects of this reasoning (and hence the reasoning of Fagan J) give rise to concern. First, whilst the long delay in permitting reporting of the murder trials is an important factor to be taken into account, there was no explanation as to why the past delay was justified but a further delay to permit the District Court trial to take place was not.

  3. Secondly, while it may be accepted that remedies available in the District Court will include vacating the trial dates and perhaps staying the trial, there was no express recognition of the obvious concern that such steps would not be in the interests of justice if they could be avoided. Accepting the likelihood of abnormal publicity, and the short timespan between the sentencing proceedings and the District Court trial, it may be inferred that a lower priority was placed on the prompt resolution of the proceedings in the District Court than on the value of publication (albeit belated) of the proceedings in the Supreme Court. If that inference were correct, it required justification.

  4. Thirdly, whilst it was undoubtedly true that Fagan J had a detailed knowledge of the proceedings over which he had presided, it is by no means clear to this Court that much attention was paid to the interrelationship between those proceedings and the forthcoming District Court trial. The indictment contains 36 charges, many of which relate to drug offences and the possession of firearms; others relate to serious assaults causing grievous bodily harm and possession of stolen property. The possibility that, in considering such matters in the context of association with a criminal group, the potential of publicity concerning murders undertaken by members of the group could be overwhelmingly prejudicial was not specifically addressed either by Fagan J or Zahra DCJ in their respective reasons. This Court does not know what material was before Fagan J on 26 August 2021 in support of the application to extend the non-publication orders. The listing on 26 August 2021 was primarily to deal with the question of dates for the sentencing of the various offenders who had been convicted or pleaded to charges before the Supreme Court. The judge did not hear oral submissions for the extension of non-publication orders, but dealt with the applications by reference to the written submissions. He first noted the intention that they be lifted when the sentencing proceedings took place and continued: [15]

“There has been a lot said in these affidavits that have been filed in support of the various applications about interference with proceedings in the District Court. When I first made non-publication orders in these proceedings it was in September 2016 when it was expected that all four of these offenders would be tried for the murder of Barbaro commencing on 14 November. The Daily Telegraph published quite a lurid article which was close to the likely commencement date of that trial and which gave me great concern about the effect upon jurors and I have continued those non-publication orders since because we have had a series of related trials, they’ve been stretched out over years now… .

There’s always been looming the next one of these murder trials and it’s for that reason that these orders have been kept in place. But I don’t see any justification, having regard to everything that’s been written in your affidavits for various parties and your submissions, for continuing non-publication orders once these men are to be sentenced. These crimes were committed five years ago. The earliest conviction was pursuant to Mr Sultani’s pleas in March 2019, two years ago. The trials have effectively been conducted virtually in camera because of a combination of the non-publication orders and public health restrictions which have prevented people attending trials in the gallery and it’s just unacceptable that this continue any longer.

As far as I’m concerned, taking into account all that you’ve submitted, … the question will be one for the judges in the District Court who try the cases from 7 February and thereafter, the outstanding matters. It will be a matter for them what they do about deferring commencement of those trials, giving adequate directions to jurors and so on. Ideally these matters would’ve been the subject of sentence proceedings in the next two weeks and there would’ve been plenty of time for all the press to have died down before any trials commenced next year and I would’ve thought that would be feasible …. But they can’t go ahead for all the reasons that you’ve presented me with, of nobody being ready. They can’t go ahead on those dates in early September.

So they’re going to be later in the year and closer to the start date of the participation in criminal group prosecution, which is listed for 7 February but so be it. I can’t keep suppressing the circumstances of these very serious offences and as a result, what I propose to do is list these cases in December. … I will maintain the prohibition until then. …

Now if that leads to applications in the District Court with respect of the criminal groups trial to start on 7 February, that will be a matter of application to the trial judge in that matter. It will be a matter for him to judge as to, in light of whatever publicity is given to these matters, whether there is some insurmountable problem or whether adequate jury directions will deal with the matter.”

15. Tcpt, 26/08/21, pp 9(20)-10(30).

  1. When the matter came back before the judge on 6 December, he extended the non-publication order, as noted above, from 10am to 4pm on that day. The judgment set out more of the procedural history than was contained in the reasons of 26 August, and summarised the reasons he gave on 26 August, including the passage at the end of the extract set out above, “[b]ut it just has to be done and the effect on subsequent trials has to be worked with.” [16]

    16. Tcpt, p 12(15).

  2. In disposing of the application on 6 December, the judge noted that there had been “no material change of circumstances so far as the position of the four offenders is concerned that will cause me to vary or vacate order 6 made on 26 August 2021.”[17] The judge concluded:

“[28]   I take into account that, on the criminal group indictment, the charges against the four offenders and against the three co-accused who are applicants before me today are of an entirely different character from the murders of which the four offenders have been convicted. The offences charged on that indictment are not are [sic] alleged to have occurred in the course of or in connection with the murders. They are particularised on the basis of discrete dates and circumstances. If any of the jurors who are empanelled in the District Court on 7 February 2022 should be aware of the prosecution of the four offenders in this Court and of the outcome, I see at present no reason why it could not be expected that those jurors would be able to follow a direction to decide the charges before them only on the evidence in the trial and without regard to the very different allegations brought against the four offenders in this Court.”

17. Judgment, 6 December 2021, at [27].

  1. The statement that there had been no material change between the events and the expectations of the Court as at 26 August and as at 6 December was not challenged. Further, by 6 December, Fagan J had been provided with a copy of the indictment to which he referred in the last passage set out above. That did not appear from the reasons before Zahra DCJ on 3 December, because it had not been referred to in the reasons of Fagan J of 26 August. Nevertheless, it provided support for the view taken by Zahra DCJ that Fagan J would be familiar with the nature of the forthcoming District Court trial.

Determination of application

  1. There is sufficient merit underlying the legal, factual and discretionary issues raised by this case to warrant a grant of leave to appeal to each of the applicants.

  2. The appeal under s 14 of the Non-publications Orders Act is by way of a fresh hearing. [18] Accordingly, it is not necessary to demonstrate error on the part of the primary judge, so long as this Court is satisfied that orders should have been made.

    18. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125; at [6]-[7]; Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97 at [14] (Bathurst CJ, Beazley P and Hoeben CJ at CL).

  3. As demonstrated by the reasoning in Qaumi,[19] to which there was no challenge, Fagan J was correct to make non-publication orders to preserve the integrity of what were ultimately seven trials in the Supreme Court, all interconnected. The question is then whether, in the circumstances recounted above, the non-publication orders should have been extended to protect the proper administration of justice in the fairness of the District Court trial which is fixed to commence on 7 February 2022.

    19. See fn 18 above.

  4. It is now just under two months before the scheduled commencement of that trial. As noted in submissions made by Mr Lange on behalf of three co-accused involved in six counts in the indictment in the District Court, the murders the subject of the proceedings in the Supreme Court “can only be described as brutal, cruel, callous and horrifying”, with all offenders coming from the same ethnic group. Such circumstances were, it was submitted, likely to arouse significant prejudice which would make it difficult for a jury to remain objective. In the circumstances, and given the brief period between the sentencing proceedings in this Court and the trial scheduled in the District Court, there must be a real possibility that, in the interests of a fair trial, the trial date will be vacated if the orders are not extended.

  5. However, whether the circumstances giving rise to that risk will materialise is partly a matter of speculation. One of the factors which the Court must take into account in determining the necessity for continuation of a non-publication order is the alternative relief available. Lurid, repetitive or irresponsible journalism will run the risk of prosecution for contempt, given the knowledge of the forthcoming trial in the District Court. [20]

    20. John Fairfax Publications at [92] (Spigelman CJ).

  6. Further, as explained in John Fairfax Publication, the risk that trial dates may have to be vacated requires more than a possible consequence; for the order proposed to be necessary in the administration of justice, there must be a high degree of confidence that such a result would eventuate. On the material before this Court, there may be some doubt about satisfaction of that test, although it is not necessary to determine the matter on that basis. There are other considerations which militate against upholding the appeal.

  7. One such matter is the absence of certainty that the trial will in any event proceed on 7 February. The prosecutor appearing before us (who is not the prosecutor in the trial) noted that there was at least a possibility that for completely separate reasons, including interlocutory applications which have not yet been brought, the trial may be set back.

  8. Judge Zahra noted that there is another trial relating to one of the accused, also said to involve “serious charges”, which has not been fixed for hearing and which would no doubt attract an application for a further continuation of the non-publication orders. [21] One matter is said still to be pending in the Local Court. Whilst it is true that each separate stage at which a continuation of non-publication orders might be sought will have to be addressed in its own terms, there is force in Fagan J’s proposition that the balance favouring open justice cannot allow the orders to be maintained indefinitely.

    21. Judgment, p 14.

  9. It was also unclear from the material to which the Court was taken as to what extent (if at all) the trial in the District Court would itself involve the disclosure of material which was the subject of the Supreme Court proceedings. The Crown Case Statement prepared by the Director of Public Prosecutions for the District Court proceedings commenced with the following statement as to how the prosecution was intended to be presented:

“Since at least January 2014, Abuzar Sultani … controlled and directed the activities of a sophisticated criminal group … involved in serious criminal offences including assault, murder, commercial drug supply, firearms trafficking, identity theft and fraud amongst other offences.”

  1. Although there is an important difference between the extent to which a jury learns of events in the controlled environment of the courtroom and subject to the rules of evidence, as opposed to uncontrolled revelation by the media, the significant possibility that many of the matters the subject of the proposed non-publication order will become known to the jury in any event enhances the prospect that potential prejudice can be dealt with effectively by carefully formulated directions.

  2. The fact that the prosecutor appearing for the Director in the District Court proceeding saw no need to support the application for non-publication orders before Zahra DCJ is a factor casting doubt on the necessity for such orders. Indeed, the fact that the judge assigned to the trial, who clearly gave detailed and careful consideration to the applications made on 30 November, was not satisfied of the need for such orders, must give pause to this Court before taking a different view.

Orders

  1. For the reasons set out above, considering the matter afresh, albeit on somewhat limited materials and with the benefit of hastily prepared and limited submissions, the applicants have not made out their claims for non-publication orders in respect of the proceedings in the Supreme Court to protect the forthcoming trial in the District Court. Accordingly the applications should be dismissed.

  2. The Court makes the following orders:

  1. Grant the applicants leave to appeal from the refusal of Fagan J on 6 December 2021 to extend the non-publication orders.

  2. Dismiss the appeal.

**********

Endnotes

Decision last updated: 16 December 2021

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