Nationwide News Pty Ltd v Qaumi

[2016] NSWCCA 97

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Nationwide News Pty Limited v Qaumi [2016] NSWCCA 97

Decision date:

27 May 2016

Before:

Bathurst CJ;
Beazley P;
Hoeben CJ at CL

Decision:

(1) 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 Appeal on Tuesday 3 May 2016 or this judgment until the conclusion of the trial of Farhad Qaumi and Mumtaz Qaumi in relation to the murder of Joseph Antoun, or until further order;

 

(2)   Order (1) above is to apply throughout the Commonwealth and is made on the basis of necessity to prevent prejudice to the proper administration of justice;

 

(3)   Grant leave to appeal;

 

(4)   Appeal dismissed insofar as it relates to the non-publication orders made by Hamill J on 24 March 2016;

 

(5)   Appeal allowed insofar as it relates to the take-down orders made by Hamill J on 24 March 2016;

 (6)   Set aside Orders (1)-(13) made by Hamill J in relation to Order (5) above.

Catchwords:

APPEAL – appeals pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW), s 14 – non-publication and take-down orders made by judge of the Supreme Court in the context of a criminal trial – whether appeal lies to Court of Appeal or Court of Criminal Appeal

 

CRIMINAL LAW – interlocutory matters – non-publication orders made in respect of a criminal trial under Court Suppression and Non-publication Orders Act 2010 (NSW), s 7 – where counts severed from indictment and criminal trials directed to proceed back-to-back – whether non-publication order in respect of evidence and submissions in first trial until conclusion of second trial “necessary” – whether other orders appropriate – interplay between open justice and right to fair trial

CRIMINAL LAW – interlocutory matters – take-down orders made in respect of a criminal trial under Court Suppression and Non-publication Orders Act 2010 (NSW), s 7 – whether orders directing removal of certain articles from certain news websites “necessary” – whether orders futile in light of material elsewhere on the internet

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 293 ALR 384
Gilbert v The Queen [2000] HCA 15; 201 CLR 414
Hamzy v R [2013] NSWCCA 156
Hogan v Australian Crimes Commission [2010] HCA 21
Hogan v Hinch [2010] HCA 21; 240 CLR 651
John Fairfax & Sons Ltd v Police Tribunal (NSW) (1985) 5 NSWLR 465
John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; 61 NSWLR 344
Lee v New South Wales Crime Commission [2013] HCA 39
Maevo v Department of Labour [1980] 1 NZLR 464
R v Debs [2011] NSWSC 1248
R v Glennon [1992] HCA 16; 173 CLR 592
R v Macfarlane; Ex parte O’Flanagan and O’Kelly [1923] HCA 39; 32 CLR 518
R v Perish; R v Lawton; R v Perish [2011] NSWSC 1102
R v Qaumi (No 15) (Non-publication order) [2016] NSWSC 318
R v Qaumi (No 16) (Internet “take down” orders) [2016] NSWSC 319
R v Qaumi (No 3) (Severance and separate trial) [2016] NSWSC 15
Rinehart v Welker [2011] NSWCA 403
X7 v Australian Crime Commission [2013] HCA 29

Category:

Principal judgment

Parties:

Nationwide News Pty Limited (First Appellant)
Australian Broadcasting Corporation (Second Appellant)
Mumtaz Qaumi (First Respondent)
Jamil Qaumi (Second Respondent)
Farhad Qaumi (Third Respondent)
Mohammad Zarshoy (Fourth Respondent)
Mohammad Kalal (Fifth Respondent)
Regina (Sixth Respondent)

Representation:

Counsel:
A T S Dawson; M Lewis (First and Second Appellants)
P D Young SC (First Respondent)
M Finnane QC; N Carroll (Second Respondent)
J Stratton SC; M Curry (Third Respondent)
R Driels (Fourth Respondent)
J Clarke (Fifth Respondent)
M M Cinque SC (Sixth Respondent)

  Solicitors:
In-house counsel (First and Second Appellants)
George Sten & Co (First Respondent)
Bannisters Lawyers (Second Respondent)
Archbold Legal (Third Respondent)
Zahr Lawyers (Fourth Respondent)
Hallak Law (Fifth Respondent)
Solicitor for the NSW DPP (Regina)

File Number(s):

2016/116295; 2016/118638; 2016/118655; 2016/118665; 2016/118678; 2016/118699; 2016/118706; 2016/118709; 2016/118727; 2016/118733

 Decision under appeal 

Court or tribunal:

Supreme Court

Citation:

[2016] NSWSC 318; [2016] NSWSC 319

Date of Decision:

24 March 2016

Before:

Hamill J

File Number(s):

2014/6809; 2014/315201; 2014/315252; 2014/6813; 2014/315251; 2014/315260; 2013/336086; 2014/18164; 2014/315253; 2014/316236; 2013/344739; 2104/66939

Headnote

[This headnote is not to be read as part of the judgment]

Criminal proceedings were brought in the Supreme Court of New South Wales in which various accused were charged with offences committed in the context of a “turf war” between two rival criminal groups known as the Brothers for Life Blacktown and the Brothers for Life Bankstown. The first to fifth respondents were charged with serious offences including murder and conspiracy to murder. The murder victims were Mahmoud Hamzy and Joseph Antoun.

On 3 February 2016, the primary judge, Hamill J, ordered that certain counts be severed from the indictment. The effect of those orders was that the charges relating to the murder of Joseph Antoun were to be heard separately from the charges relating to the murder of Mahmoud Hamzy. Hamill J directed that the trial of the charges relating to the murder of Joseph Antoun (the Antoun murder trial) was to proceed immediately upon the completion of the trial relating to the murder of Mahmoud Hamzy (the Hamzy murder trial).

On 24 March 2016, Hamill J made an order under the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Act) prohibiting publication of the evidence and submissions in the Hamzy murder trial. The order was to operate throughout the Commonwealth, and until the conclusion of the Antoun murder trial. On the same day, Hamill J made orders directing certain media entities to remove specified articles from their respective websites.

Nationwide News Pty Ltd and the Australian Broadcasting Corporation sought leave to appeal from the orders made by the primary judge and also sought an extension of time in which to bring their appeal.

The essential issue on the appeal in respect of the non-publication order was whether the orders made by the primary judge were “necessary” within the meaning of the Suppression Act, s 8. In particular, whether, and if so, in what circumstances, a total prohibition on reporting of a criminal trial until a second related trial is heard and determined will ever be appropriate.

The issue raised on the appeal in respect of the take-down orders was whether such orders can be made on the sole basis that a juror might defy a trial judge’s direction not to conduct Internet searches. The media parties contended that the take-down orders required the removal of archived material in circumstances where similar material was available elsewhere on the Internet.

The Court (Bathurst CJ, Beazley P and Hoeben CJ at CL):

(1)   Where orders are made under the Court Suppression and Non-publication Orders Act 2010 (NSW) in the context of a criminal trial, an appeal properly lies to the Court of Criminal Appeal as the Court from which an appeal would lie against a final judgment of the Supreme Court in its criminal jurisdiction. The appeal is by way of hearing de novo. [14]

Fairfax Digital Australia and New Zealand v Ibrahim at [6]-[7] per Bathurst CJ; Hamzy v R [2013] NSWCCA 156 at [36] per Hoeben CJ at CL; and at [63] per Beech-Jones J.

(2) By virtue of s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the only grounds upon which an order may be made under the Act are those specified in s 8(1). [20]

(3) It is sufficient that the order is “necessary” to achieve one of the objectives identified in paras (a)-(e) of subs 8(1), although in a particular case, the making of an order may be necessary for more than one of the objectives specified in the paragraphs of the subsection. [20]

(4)   The word “necessary” is a strong word, and indicates a legislative intention that orders should only be made in exceptional circumstances. It will not suffice that the order is convenient, reasonable or sensible, or serves some general notion of public interest. [22], [24]

Rinehart v Welker [2011] NSWCA 403 at [27], [31]

(5) Section 6 requires a court, in determining whether to make an order, to take into account the public interest in open justice as a primary objective of the administration of justice. Except to the extent that orders can only be made on the grounds specified in s 8(1)(a)-(e), the Act does not otherwise identify or preclude from consideration other objectives of the administration of justice. [19].

(6)   Open justice is of fundamental importance in the administration of justice in the Australian legal system. However, there are other fundamental principles underlying the proper administration of justice in Australia, including the right to a fair trial. In some circumstances, those principles come into conflict. [22]-[36]

Rinehart v Welker [2011] NSWCA 403 at [39]; John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; 61 NSWLR 344 at [17], [21]-[22]; Maevo v Department of Labour [1980] 1 NZLR 464 at 481; X7 v Australian Crime Commission [2013] HCA 29 at [37], [89].

In relation to the non-publication orders:

(7)   In an exceptional case, an order prohibiting publication of the evidence and submissions in a criminal trial until the conclusion of a second related trial may be necessary to prevent prejudice to the proper administration of justice or for a public interest that significantly outweighs the public interest in open justice. [62]-[77]

John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; 61 NSWLR 344 at [59].

(8)   Delaying the second related trial may not be sufficient to prevent prejudice to the administration of justice. It is essential that persons charged with criminal offences have those charges determined as early as is possible in the criminal justice system. Persons should not be denied their liberty for lengthy periods pending trial. [77]

(9)   It is fundamental that witnesses give their evidence, not only untrammelled by threats should they do so, but as soon as possible so as to protect the integrity of the evidence, which may not only be infected by fear of personal danger, but by the normal human processes of fading memory. [65], [68], [77]

(10)   The use of pseudonym orders may not be sufficient to prevent prejudice to the administration of justice. This may be the case where there are unique identifying features with the potential to infect the potential jury pool summonsed for the second trial. [70]-[72]

In relation to the take-down orders:

(11)   An order will fail the test of necessity if it is futile. However, inability to take-down all offending material, or the mere fact that material is on overseas websites, will not necessarily mean that a take-down order would be futile. [83]

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 293 ALR 384 at [76]; R v Perish; R v Lawton; R v Perish [2011] NSWSC 1102 at [44].

(12)   Evidence that the take-down of one item had some effect in reducing the information available on the internet will not preclude a finding of futility. An order may be futile where the court is not satisfied it would result in materials being sufficiently removed from the internet. [89]-[90]

(13)   A trial judge is able to give directions to a jury that they must determine the matter on the evidence before the Court. The received wisdom of the courts, having conducted jury trials over the years, is that juries act responsibly and in accordance with their oath, including in complying with the directions of the trial judge. [90]

Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [21].

Judgment

1. THE COURT: There are presently before the Supreme Court of New South Wales criminal proceedings in which the first to fifth respondents are charged with serious offences including murder and conspiracy to murder. The murder victims were Mahmoud Hamzy and Joseph Antoun.

2. On 3 February 2016, Hamill J ordered that certain counts be severed from the indictment: R v Qaumi (No 3) (Severance and separate trial) [2016] NSWSC 15 (the severance judgment). The effect of those orders was that the charges relating to the murder of Joseph Antoun were to be heard separately from the charges relating to the murder of Mahmoud Hamzy. Hamill J directed that the trial of the charges relating to the murder of Joseph Antoun (the Antoun murder trial) was to proceed immediately upon the completion of the trial relating to the murder of Mahmoud Hamzy (the Hamzy murder trial): the severance judgment at [145]. This direction has been referred to in the proceedings as the “back-to-back trial direction” and it is convenient to continue to use that description.

3. On 24 March 2016, Hamill J, on the application of Farhad Qaumi and Mumtaz Qaumi, made an order under the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Suppression Act) prohibiting publication of the evidence and submissions in the Hamzy murder trial. That order continues until the conclusion of the Antoun murder trial: R v Qaumi (No 15) (Non-publication order) [2016] NSWSC 318 (the non-publication judgment).

4. The orders made by his Honour were as follows:

“(1)   Publication of the evidence and submissions in the present trial is prohibited until the occurrence of one of the events specified in order (2) on the grounds that (a) the orders is necessary to prevent prejudice to the proper administration of justice and (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) For the purpose of s 12 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the order is continued until the conclusion of the trial of Farhad Qaumi and Mumtaz Qaumi in relation to the murder of Joseph Antoun (‘the Antoun trial’), or until any order is made under s 132 Criminal Procedure Act 1986 (NSW) that the Antoun trial is to be tried by judge alone, or until further order.

(3) Pursuant to s 11 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the order applies throughout the Commonwealth of Australia.”

5. On the same day, on the application of Jamil Qaumi, his Honour made orders directing certain media entities to remove certain specified articles from their respective websites: R v Qaumi (No 16) (Internet “take down” orders) [2016] NSWSC 319 (the take down judgment).

6. Nationwide News Pty Limited (Nationwide News) and the Australian Broadcasting Corporation sought leave to appeal from the orders made by the primary judge in respect of each application under the Suppression Act, s 14 and also sought an extension of time in which to bring the appeal. Fairfax Media Publications Pty Limited, which was also an intervener in the applications, did not join in either appeal.

7. The active respondents on the appeal were Farhad Qaumi, Mumtaz Qaumi, Jamil Qaumi and the Crown. Jamil Qaumi adopted the submissions advanced by Farhad Qaumi and Mumtaz Qaumi. The legal representatives for the respondents Mohammad Zarshoy and Mohammad Kalal were present in court, but did not separately advance any argument on the appeal.

8. Leave to appeal, which was not opposed, should be granted. The appeal raised important questions in relation to the principles of open justice and the right of an accused person to a trial according to law. In particular, it raised for consideration and determination the circumstances in which, if ever, it will be necessary to prohibit the reporting of a trial until a second related trial, listed to be heard following the conclusion of the first trial, has been heard and determined. For the same reason, and as no question of prejudice to the respondents has been raised, an extension of time should be granted.

Relevant background

9. The background to the relevant criminal proceedings has been explained in the various interlocutory judgments of the primary judge in this matter. On the original indictment before Hamill J, there were 36 counts relating to eight accused. Of those accused, Farhad Qaumi, Mumtaz Qaumi, Jamil Qaumi and Mohammad Zarshoy have been charged with the murder of Mahmoud Hamzy. Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi have also been charged with conspiracy to murder Mohammed Hamzy. Farhad Qaumi and Mumtaz Qaumi have been charged with the murder of Joseph Antoun.

10. Other charges relating to the possession and discharge of firearms, shooting at persons with intent to kill or inflict grievous bodily harm, extortion or intimidation offences, and charges relating to drug supply have been brought against various accused. Each accused is also charged with an offence of participating in a criminal group. In the non-publication judgment, Hamill J, at [14], referred to the charges as having arisen in the context of “a ‘turf war’ between two rival criminal groups known as the Brothers for Life Blacktown … and the Brothers for Life Bankstown”.

11. Some of the charges are being heard as part of the Hamzy murder trial and any reference to that trial hereafter in these reasons should be taken to include those additional matters. The Hamzy murder trial, which is presently proceeding before the primary judge, is expected to proceed for a period of approximately 4-6 months. The Antoun murder trial, which has been directed to proceed at the conclusion of the Hamzy murder trial, is expected to take approximately 2 months.

Issues on the appeal

12. The essential issue on the appeal in respect of the non-publication order was whether the orders made by the primary judge were “necessary” within the meaning of the Suppression Act, s 8. In particular, the appellants raised for consideration the question whether, and if so, in what circumstances, a total prohibition on reporting of a criminal trial until a second related trial is heard and determined will ever be appropriate: see John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; 61 NSWLR 344 at [59]. The appellants emphasised the interest of the community in being informed of the proceedings, including matters that emerged from the evidence, involving as they did, serious gang-related crime. The appellants’ underlying complaint was that as a result of the non-publication order, evidence and submissions in the Hamzy murder trial cannot be published until the Antoun murder trial is concluded, a period in excess of 6 months.

13. The issue raised on the appeal in respect of the “take down” orders was whether such orders can be made on the sole basis that a juror might defy a trial judge’s direction not to conduct Internet searches. A question was also raised as to the correctness of the approach taken in R v Debs [2011] NSWSC 1248 and R v Perish; R v Lawton; R v Perish [2011] NSWSC 1102. The appellants’ essential complaint was that the “take down” orders required the media to remove archived material in circumstances where similar material is available elsewhere on the Internet.

14. One further matter should be mentioned at the outset. A question arose as to the source of the appellants’ right to appeal and the proper jurisdiction in which to bring that appeal. The Court is satisfied that an appeal lies to the Court of Criminal Appeal pursuant to the Suppression Act, s 14. The appeal is by way of hearing de novo: Fairfax Digital Australia and New Zealand v Ibrahim at [6]-[7] per Bathurst CJ; Hamzy v R [2013] NSWCCA 156 at [36] per Hoeben CJ at CL; and at [63] per Beech-Jones J. The Court permitted affidavit evidence to be read on the appeal on condition that there be no cross-examination.

Legislation

15. The Suppression Act is an Act to provide for the making of suppression and non-publication orders by courts. The Act does not limit or otherwise affect any inherent jurisdiction or powers that the court may have to regulate its own proceedings or to deal with a contempt of the court apart from the Act: s 4.

16. The sections of the Act relevant to the appeal are ss 3, 6, 7 and 8. Those sections provide:

“3   Definitions

In this Act:

court means:

(a)   the Supreme Court, Land and Environment Court, Industrial Court, District Court, Local Court or Children’s Court, or

(b)   any other court or tribunal, or a person or body having power to act judicially, prescribed by the regulations as a court for the purposes of this Act.

information includes any document.

news media organisation means a commercial enterprise that engages in the business of broadcasting or publishing news or a public broadcasting service that engages in the dissemination of news through a public news medium.

non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).

party to proceedings includes the complainant or victim (or alleged victim) in criminal proceedings and any person named in evidence given in proceedings and, in relation to proceedings that have concluded, means a person who was a party to the proceedings before the proceedings concluded.

proceedings means civil or criminal proceedings.

publish means disseminate or provide access to the public or a section of the public by any means, including by:

(a)   publication in a book, newspaper, magazine or other written publication, or

(b)   broadcast by radio or television, or

(c)   public exhibition, or

(d)   broadcast or publication by means of the Internet.

suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise).

…

6   Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

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.

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 an act of indecency),

(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.”

17. Thus, the scheme of the Act provides by way of the interrelated provisions of ss 6, 7 and 8 for the circumstances in which a court may make an order to supress or prohibit publication of court proceedings.

18. Section 7 confers upon a court power to make an order that prohibits or restrains the disclosure of the two categories of information identified in paras (a) and (b) of the section.

19. Section 6 requires a court, in determining whether to make an order, to take into account the public interest in open justice as a primary objective of the administration of justice. Except to the extent that orders can only be made on the grounds specified in s 8(1)(a)-(e), the Act does not otherwise identify or preclude from consideration other objectives of the administration of justice. Nor, save to the extent that it provides that open justice is one of the primary principles in the administration of justice, does it establish a hierarchy of objectives.

20. By virtue of s 7, the only grounds upon which an order may be made under the Act are those specified in s 8(1). Section 8(1) requires that the order made must be “necessary” to achieve the objective identified in the relevant subparagraph. It is sufficient that the order is “necessary” to achieve one of the objectives identified in paras (a)-(e) of subs 8(1), although in a particular case, the making of an order may be necessary for more than one of the matters specified in the paragraphs of the subsection.

21. The primary judge made orders pursuant to s 8(1)(a) and (e).

Case law

Meaning of “necessary” in s 8(1)

22. In Rinehart v Welker [2011] NSWCA 403, at [27], Bathurst CJ and McColl JA, in considering the background to the introduction of the Act, explained the meaning of “necessary” in s 8 as follows:

“The operative condition for making a suppression order under s 8 of the CSPO Act is that it be ‘necessary’ to do so, which ‘... is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice ... ‘suggests Parliament was not dealing with trivialities’ ’: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan v Australian Crime Commission were made in relation to a legislative scheme which, while it required the jurisdiction of the Court to be exercised in open court (s 17, Federal Court of Australia Act) did not contain a provision in like terms to s 6 of the CSPO Act. That provision, in our view, reinforces the legislative intention that CSPO Act orders should only be made in exceptional circumstances, a position which prevailed at common law: John Fairfax Publications Pty Ltd v District Court of NSW (at [21]).” (emphasis added)

23. Bathurst CJ and McColl JA observed, at [28], that “necessity” was the test that had been applied by the courts in the exercise of the inherent jurisdiction to make non-publication orders: see John Fairfax Publications v District Court of NSW. Their Honours observed, at [29], that the clearest statement that the test for making a suppression order or non-publication order under the inherent jurisdiction was one of “necessity”, was to be found in John Fairfax & Sons Ltd v Police Tribunal (NSW) (1985) 5 NSWLR 465 at 476-477. That passage, which was cited with approval in Hogan v Hinch [2010] HCA 21; 240 CLR 651 at [21], is set out below. As their Honours’ reasons also demonstrate, the requirement of necessity as the test for making any order that impinges upon the rule of open justice has a long history: see R v Macfarlane; Ex parte O’Flanagan and O’Kelly [1923] HCA 39; 32 CLR 518 at 549, cited with approval by the plurality in Hogan v Hinch at [87].

24. Their Honours further noted, at [31], that it was not sufficient, to satisfy the test of necessity, that an order be “convenient, reasonable or sensible, or serve some notion of the public interest”. Their Honours pointed out that there was no question of engaging in a “balancing exercise”: see Hogan v Hinch at [31].

25. In Macfarlane; Ex parte O’Flanagan and O’Kelly, Isaacs J observed, at 549:

“The final and paramount consideration in all cases is that emphasized in Scott v. Scott, namely, ‘to do justice’ (Viscount Haldane L.C.). All other considerations are means to that end. They are ancillary principles and rules. Some of them are so deeply embedded in our law as to be elementary and axiomatic, others closely approach that position. Of the latter class is publicity, which can only be disregarded where necessity compels departure, for otherwise justice would be denied to those whom Earl Loreburn termed ‘the parties entitled to justice.’” (footnotes omitted)

26. In John Fairfax & Sons Ltd v Police Tribunal (NSW), McHugh JA (Glass JA agreeing) stated, at 476-477:

“The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule … an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice …” (emphasis in original)

Meaning of “the administration of justice”

27. In the present case, the primary judge founded his non-publication order, inter alia, on para (a), namely, that the order was necessary to prevent prejudice to the proper administration of justice. In Rinehartv Welker, Bathurst CJ and McColl JA observed, at [39], that the “administration of justice” is a multi-faceted concept:

“As Young JA has said (at [86]) as used in s 50 of the Federal Court of Australia Act , ‘it is,... a reference to the public interest that the court should endeavour to achieve effectively the object for which it was appointed to do justice between the parties’: Australian Broadcasting Commission v Parish (at 133) per Bowen CJ.”

Other fundamental objectives

28. Spigelman CJ, in John Fairfax Publications v District Court of NSW, at [17], in describing the principle of open justice as “one of the most fundamental aspects of the system of justice in Australia”, nonetheless recognised that there were various other fundamental principles underlying the justice system, including the right of a person to a fair trial.

29. The right to a fair trial has itself been described, as Spigelman CJ identified, at [22], as “the central thesis of the administration of criminal justice”; as “the central prescript of our criminal law” and as “a fundamental element” (citations omitted).

30. Another aspect of the proper conduct of a criminal trial was adverted to in Maevo v Department of Labour [1980] 1 NZLR 464, at 481, where Richardson J observed that:

“… the public interest in the due administration of justice necessarily extends to ensuring that the Court’s processes are used fairly by State and citizen alike.”

31. His Honour also observed that there was a second aspect of the public interest, namely, “the maintenance of public confidence in the administration of justice”.

Exceptional cases

32. In John Fairfax Publications v District Court of NSW, Spigelman CJ observed, at [21], that:

“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, e.g. Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D-E and 54G.)”

His Honour acknowledged, at [17], that different fundamental principles may sometimes conflict.

33. Spigelman CJ acknowledged, at [59], that there may be circumstances where media publicity is such that a person “will not be able to have a fair trial within a reasonable period or at all”. In such circumstances, his Honour foresaw the benefit of an “anticipatory non-publication order ... to ensure fairness to the prosecution”. Again, however, his Honour referred to that as being an “exceptional case”.

34. The Chief Justice observed that such an exceptional case would be “so unlikely” that it could not form the basis for implying a power in the District Court, which, as the position pertained prior to the introduction of the Suppression Act, otherwise had no jurisdiction to make a suppression order.

Back-to-back trials

35. Spigelman CJ also recognised that the difficulty caused by media publicity would arise most acutely in cases where back-to-back trials had been directed. Although his Honour did not consider that to be sufficient to justify the implication of a power, he accepted that in such cases, a suppression order could be made in the supervisory jurisdiction of the Supreme Court.

36. In the course of his reasons Spigelman CJ observed, at [63], that there were circumstances in which back-to-back orders were desirable, having regard to “considerations such as the convenience of witnesses, the efficient deployment of prosecutorial resources, the effective management of a court’s caseload”, adding, however, that:

“Considerations of convenience and efficiency are a wholly inadequate basis to justify the implication of a power to prohibit publication of a verdict. If such considerations are to operate as a qualification of the principle of open justice, express statutory authority is required.”

The non-publication orders

Primary judge’s reasons

37. The issue of the severance of the counts relating to the murder of Joseph Antoun from the indictment and the order for the separation of the two trials loomed large in the submissions on the appeal before this Court.

38. In the non-publication judgment, the primary judge, at [19], explained that he had severed the Antoun murder counts “because it would be impossible for the accused to receive a fair trial if the evidence in relation to all of these matters was received by the same jury”. His Honour explained that he had taken the view that it would be impossible to fashion directions to a jury that would overcome any prejudice that would be occasioned by the Antoun murder trial proceeding alongside the Hamzy murder trial, insofar as that trial was concerned with the matters arising out of the turf war between the chapters of the Brothers for Life.

39. His Honour, at [20] of the non-publication judgment, recorded the position of the respondents in seeking the suppression order which was that if the Hamzy murder trial was the subject of extensive media coverage, it would be impossible to summons a jury in the Antoun murder trial who would not be affected or influenced by knowledge of those earlier incidents. His Honour noted the argument that any media coverage would be extensive such as to render otiose the orders for severance and separation of the trials.

40. In support of their application, the respondents had adduced evidence of newspaper and other media items relating to the turf war and the murders of Mahmoud Hamzy and Joseph Antoun. His Honour, at [24] of the non-publication judgment, inferred from this material the nature and extent of the media coverage that could be anticipated. His Honour accepted that “the coverage is likely to be prominent, dramatic and sustained throughout the period of the trial” and would likely be published by all forms of media and be readily available on the Internet.

41. His Honour stated, at [25] of the non-publication judgment, that he was:

“… comfortably satisfied that in the absence of some form of restriction on publication, a large section of the public will become aware of the fact that Farhad and Mumtaz Qaumi are alleged to be the leaders of Brothers For Life Blacktown, and directed the activities of that organisation …”

including activities of serious criminality, including a murder and serious woundings.

42. His Honour considered, at [26], that:

“There is little doubt that if a jury trying the Antoun murder case was aware of some or all of this material, it would be inimical to the [respondent’s] right to a fair trial. It would make the orders severing the counts otiose and it would not be possible … to direct the jury in such a way as to overcome the prejudice.”

43. It was his Honour’s view, at [72] of the non-publication judgment, that unless there was some restriction or suppression on the publication of the evidence in the Hamzy murder trial it would not be possible to proceed with the Antoun murder trial “for some significant time”. As his Honour stated, “[i]n short, it is necessary to make some form of order to protect the integrity of the Antoun murder trial”. In this regard, his Honour rejected that it was merely “convenient, reasonable or sensible” to make an order restricting publication.

44. Having reached that conclusion, the question for his Honour’s determination was the form that the order ought to take, having regard to the test of necessity, which, as he noted, “remains at the forefront of consideration”, and to the need to formulate orders which would be “least intrusive upon the public interest in open justice”. His Honour then considered the various alternative orders that might be made.

45. His Honour, at [73]ff, rejected as an alternative to a non-publication order, a proposal by the appellants that there be a delay before the Antoun murder trial proceed. In his Honour’s view, as expressed at [74], there were victims and informant witnesses who had an expectation that the Antoun murder trial proceed as soon as possible. His Honour considered that Joseph Antoun’s family and friends were entitled to see those charged with his murder brought to trial in a timely fashion, having particular regard to the impact that his murder had had upon family, including those who were present when the killing occurred.

46. His Honour, at [75] of the non-publication judgment, referred to the position of five informant witnesses who are to give evidence in both trials. Hamill J noted, at [75], that “[t]he longer that the case remains before the Court, the longer these witnesses will remain the focus of attention, with the consequent danger to them”. In this regard, the Court was informed during the course of argument on the appeal that his Honour had heard evidence on the voir dire that 13 informant witnesses had each made statements to the police indicating their fears about being required to give evidence in open court. His Honour had earlier rejected an application that those witnesses give their evidence by video link, because of the fears the witnesses held for their personal safety. That is not a matter in issue in the matter with which this Court is presently dealing. What is of relevance here is that there was evidence before his Honour of the fear of danger held by these witnesses.

47. At [76], his Honour stated that the accused were also entitled to have their trial heard and determined in a timely fashion. As his Honour noted, the respondents had been in custody since 8 January 2014 on remand, bail refused, awaiting trial for charges to which each had entered a plea of not guilty.

48. His Honour concluded, at [77], that postponing the Antoun trial in order to give effect to the public interest in open justice was not an appropriate solution.

49. His Honour, at [78]ff, considered a number of other alternative solutions. The first was changing the venue, which was found not to be a viable option. The second was to prohibit publication until the commencement of the Antoun murder trial so that the jury selected in that trial would not be aware of pre-existing publicity. However, that solution did not deal with the concern that the media coverage of the Hamzy murder trial was likely to infect the potential jury pool for the Antoun trial. Another suggestion was to reverse the order of trials, but that was found to be impracticable.

50. A further alternative, most favoured by the media interests in the hearing before his Honour, was that there be non-publication of the identities of the accused or that they be identified by pseudonym. His Honour considered this alternative at [83]ff. In doing so, his Honour noted that he had invited counsel for Farhad Qaumi and Mumtaz Qaumi to draft appropriate orders but that they had been unable to do so. The impediment to their successfully doing so, it seemed was because, as Senior Counsel for Farhad Qaumi had submitted, there were “so many unique identifiers which, even if there was a suppression order, a jury would very easily be able to connect the two trials”.

43. His Honour concluded, at [87]-[89]:

“87   Having considered the matter, including possible alternative orders, at some length, I find myself accepting the submission made by Senior Counsel for Farhad Qaumi. In both trials, witness L, and other witnesses to be called by the Crown, are expected to give evidence relating to the background circumstances and their involvement with the Qaumi brothers. This evidence will be elicited to explain why they conducted themselves in the way that they did. A significant part of the Crown case against Farhad Qaumi in both trials will be the evidence of a number of witnesses who (it is anticipated) will say that he used evidence, threats and intimidation to ensure that they obeyed directions. A number of specific incidents will be relied on. As between the two trials, there is a commonality of the evidence and the incidents to which that evidence relates. It is impossible to imagine that the common features of that testimony would not be obvious to any member of the jury pool summoned in the Antoun trial.

88   It is, in my assessment, impossible to predict in advance (and then to particularise and formulate an order) the precise content of each and every item of evidence that might lead a potential juror to realise that the two men said to have ordered the execution of Mr Antoun were also the leaders of the group of men subject to the twenty or so allegations in the first trial.

89   For these reasons, I have concluded that it is not feasible to fashion orders that would be effective in hiding the identity of the two accused. If such orders were possible, it would not be necessary to make an order prohibiting (or, more correctly, postponing) publication of the evidence and submissions in the present trial. If my ultimate conclusion is wrong, I would certainly have been persuaded that some form of order designed to suppress the identity of the accused and links between the two trials should be made.”

Appellants’ submissions

52. The appellants contended that his Honour, in determining that it was necessary that a non-publication order be made, had in effect inverted the decision-making process. As the argument went, his Honour proceeded on the basis that a non-publication order was necessary to protect the efficacy of, and reason for, the direction that the two trials proceed back-to-back. The appellants contended that the risk of prejudice to the Antoun murder trial from publicity in respect of the Hamzy murder trial had, in fact, been created by the court’s own “case management” order. The appellants contended that the “key error” was that his Honour treated that listing as immovable.

53. The appellants further complained that no reasons were ever given for the direction that the trials be held back-to-back until his Honour gave reasons in the non-publication judgment at [74]-[76]. On the appellants’ argument, prejudice to the Antoun murder trial from media coverage of the Hamzy trial could be overcome by the Antoun proceedings being heard at a later date.

54. This led to the appellants’ next submission, namely that his Honour had erred in finding that the non-publication order was necessary. This formed one aspect of the challenge to his Honour’s findings at [24] which, the appellants contended, contained two fundamental errors of principle. The first was that his Honour erred in relation to the test of necessity. In this regard the appellants submitted that the test of “necessity” is not informed by what is reasonable, sensible, or in service to some notion of the public interest: Hogan v Australian Crimes Commission [2010] HCA 21 at [30]-[31]. Nor was a mere belief of necessity sufficient: John Fairfax & Sons Ltd v Police Tribunal at 476-477. These submissions also formed the basis of the challenge to his Honour’s so called retrospective reasoning at [74]-[76] to support the order for separate trials.

55. The appellants submitted that the test of necessity could only be satisfied if supported by cogent and clear evidence filed in support of the relevant application: Fairfax Digital Australia and New Zealand v Ibrahim at [8] and [49]-[51]; Rinehart v Welker at [29]; John Fairfax & Sons Ltd v Police Tribunal at 476-477. The appellants contended that the evidence upon which his Honour relied raised, at most, a ‘fear’ of prejudice. They further argued that, his Honours satisfaction, expressed at [25], was not supported by evidence but appeared to have been based upon a submission of the Crown prosecutor, recorded in the non-publication judgment at [55]. The appellants contended that that submission was itself unsupported by any evidence.

56. The appellants also challenged the relevance of his Honour’s reasoning at [53] of the non-publication judgment in distinguishing John Fairfax Publications v District Court of NSW as relating to the implied powers of the District Court whilst overlooking the point made by Spigelman CJ, at [38] of that judgment, that for practical purposes the test of necessity applied equally to the implication of a power for a statutory court and to the exercise of an inherent power in a superior court.

57. The second alleged fundamental error, according to the appellants, was that his Honour’s conclusion, that any prejudice could not be appropriately accommodated and managed by directions to the jury, flew in the face of the long-established presumption that juries listen to and abide by directions that they are to determine the guilt of the accused solely on the evidence before them: Fairfax Digital Australia and New Zealand v Ibrahim. The appellants contended that his Honour’s conclusion reflected “mere conjecture or speculation”, an approach criticised by Mason CJ and Toohey J in R v Glennon [1992] HCA 16; 173 CLR 592 at 603, and cited by Spigelman CJ in John Fairfax Publications v District Court of NSW at [104].

Respondents’ submissions

58. Senior Counsel for Farhad Qaumi emphasised the following matters as underpinning the correctness of his Honour’s decision. First, the statements of the witnesses received by his Honour on the voir dire, which provided evidence of the danger to those witness; secondly, the fact that his Honour had sentenced Witness L. Witness L was involved in the shooting of Mahmoud Hamzy and was the person who, on the Crown case, shot Joseph Antoun. On the sentence hearing of Witness L, the primary judge had heard evidence from the family of Joseph Antoun and accepted that it was in the interests of the family to have the matter resolved as soon as possible.

59. Senior Counsel for Farhad Qaumi submitted that, contrary to the appellants’ submission, his Honour had not treated the back-to-back listing as immovable, as was apparent from the fact that he considered various alternative orders that might be made, but found them to be inadequate to protect the integrity of the Antoun murder trial.

60. Senior Counsel for Farhad Qaumi also repeated the submission that he had made to the primary judge that the use of pseudonyms would be insufficient because there were too many unique identifying features between the two trials. Those identifying features were: all the accused were at some stage members of the Blacktown chapter of Brothers for Life; nearly all of the accused were of Afghani descent; three of the accused are brothers; two live on the Central Coast; there were a number of witnesses to both trials and, in particular, Witness L was a significant participant in each of the murders; and a crucial witness in each case is a single woman of Western European or Anglo origin and there would be evidence that she had a relationship with the third respondent, Farhad Qaumi.

61. Senior counsel submitted that there were additional factors relevant to identifying the two trials as being connected. These included that the Hamzy murder trial is being conducted at the Downing Centre in what is considered to be the only relevantly secure court in which to so. It is likely that the Antoun murder trial will be conducted in the same court and by the same judge. Senior Counsel also relied on the position that attempts at fashioning orders to achieve a result less than total prohibition on reporting had not proved to be feasible.

Consideration

62. We have set out above statements of principle in the case law as to the fundamental importance of open justice in the administration of justice in the Australian legal system. However, open justice is not the only fundamental principle that needs to be recognised and protected as an aspect of the proper administration of justice. There are others. Critical to this case is the fundamental right of a person to a fair trial. As French CJ and Crennan J stated in X7 v Australian Crime Commission [2013] HCA 29 at [37]:

“Relevant authorities have given context to the concept and importance of the right of every accused person to a fair and impartial trial according to law. Although Deane J pointed out in Jago that an accused’s right to a fair trial is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial, for no person can enforce a right to be tried by the state, ‘it is convenient, and not unduly misleading, to refer to an accused's positive right to a fair trial’.” (citations omitted)

63. Hayne and Bell JJ, at [89], considered that the question to ask in determining whether a person has had a fair trial, is “whether the accused has had, or will have, a trial according to law”.

64. What it means to have a fair trial has been considered in recent cases in the context of the accusatorial process by which criminal trials are conducted in this country. In that regard, the High Court has referred to the principle that “the onus of proof rests on the prosecution, whom the accused is not required to assist”: Lee v New South Wales Crime Commission [2013] HCA 39 at [125].

65. However, it is to be remembered that the right of an accused person to a fair trial, in the sense of a trial according to law including that the onus rests on the Crown to prove the guilt of the accused, is not merely a personal right residing in an accused person. Whilst that is a fundamental aspect of the administration of justice, there are other fundamental interests in play. As we have already stated, open justice is one such interest. Another is that witnesses must be free to give evidence without being subject to the threat of violence or having a reasonably based fear of violence. This is essential to the “maintenance of public confidence in the administration of justice”: see above at [31] per Richardson J in Maevo. Indeed, this aspect of the administration of justice finds expression in the provisions of the criminal law: see, for example, the Crimes Act 1900 (NSW), s 315A, which provides for a penalty of 7 years imprisonment for threatening or intimidating victims or witnesses.

66. It was not argued in this case that it was inappropriate to anonymise the identity of witnesses by the use of pseudonyms. There was a clear recognition of the need to protect the identity of witnesses, some of whom are informers and some of whom are victims. Nor was it in dispute that the principle of open justice is fundamental to the proper administration of justice. Rather, the challenge was to whether the non-publication order made by his Honour was “necessary”.

67. We do not accept the appellants’ submission that the consequence of the back-to-back order was to invert the decision making process so that the non-publication order was, in effect, driven by or made inevitable because of the prejudice to the accused in the Antoun murder trial. Leaving aside any other matter, his Honour, in the non-publication judgment, gave express consideration to delaying the hearing of the Antoun murder trial. However, in a finding not challenged by the appellants, his Honour considered that if that approach was taken, the Antoun murder trial would have to be delayed for a considerable period in order to ensure that the fairness of the trial was not prejudiced by media coverage of the Hamzy murder trial. His Honour considered that that was not feasible, for the reasons he gave at [74]-[76], to which we have referred above at [44]-[47].

68. Contrary to the appellants’ submission that there was no evidence, the consideration his Honour gave to the position of the victims and the informant witnesses was supported by the evidence on the voir dire to which we have referred. Having regard to that evidence, his Honour’s finding at [75] that “[t]he longer that the case remains before the Court, the longer these witnesses will remain the focus of attention, with the consequent danger to them” was an available and indeed obvious inference.

69. Apart from the third and fifth proposals, the appellants did not suggest that any of the other alternatives that his Honour considered were practical orders that could be made to protect the integrity of the trial process.

70. The third proposal was that there be an order prohibiting publication of the Antoun murder trial until the trial commences, coupled with an order that the names of Farhad Qaumi and Mumtaz Qaumi not appear in the court list other than by the use of pseudonyms. The appellants’ argument, made to his Honour and to this Court was that the third proposal would be sufficient as it would ensure there was no publicity of the Antoun murder trial until such time as the jury had been empanelled and was in the control of the court. At that time, the jury would be subject to the trial judge’s directions. Those directions would include that they must only determine the case on the basis of the evidence.

71. The appellants recognised that because the evidence in the Antoun murder trial would cover some of the same evidence as adduced in the Hamzy murder trial, then, on the premise that there would be publicity of the Hamzy murder trial, jurors in the Antoun murder trial may recognise that Farhad Qaumi and Mumtaz Qaumi had been involved in the earlier trial. They submitted, however, that any such recognition would not occur until some time into the trial and again, the jurors would be expected to act on the directions given by the trial judge.

72. Although the courts, in the administration of justice, place great store in the integrity of the jury system, including that jurors will act on the directions given by the trial judge, the appellants’ response does not deal with the concern raised by the trial judge as to the effect of publicity on the pool of potential jurors. The difficulty that was of concern to his Honour was with summonsing a jury, not with the manner in which the jury would be expected to carry out their functions. As his Honour pointed out, the third proposal failed to deal with the concern that the Hamzy murder trial would attract significant media publicity which was “likely to infect the potential jury pool summonsed for the Antoun [murder] trial”. This was because there were too many unique identifiers linking the two trials. We consider that the reasons his Honour gave for rejecting the third proposal were cogent and we agree with them.

73. The appellants also maintained the fifth proposal they had advanced below that a pseudonym order would be sufficient. They complained, however, that in the manner in which the matter had been argued below, an onus had been placed upon the media parties to formulate satisfactory orders. It was submitted that this was both erroneous and unfair. According to the appellants, this was erroneous because the media parties were not the applicants for the non-publication order and hence did not bear any onus to satisfy the court that there was some other order that could be made. It was unfair because the media parties did not have access to all the judgments in the case, which are themselves subject to non-publication orders.

74. Both aspects of this submission failed to deal with two matters. The first was that, according to his Honour’s reasons at [82] fn 14, Senior Counsel for Mumtaz Qaumi had given his Honour some indication that orders might be drafted. As we understood his Honour’s reasons, no request was made or direction given to the appellants by his Honour to do so. However, that did not occur. More importantly, the submission failed to deal with the unique identifiers addressed by Senior Counsel for Farhad Qaumi and which his Honour accepted “inevitably link the two cases”. We agree that those identifying features are overwhelmingly of a kind such that it would be almost impossible for a person who followed the media in its various forms not to make the connection between the two trials.

75. We consider, conformably with the view of the primary judge, that the fair trial of the respondents in the Antoun murder trial would be prejudiced in the absence of a non-publication order. We also agree with his Honour that there are no practical alternatives capable of ensuring that the Antoun murder trial will not be prejudiced by the media coverage of the Hamzy murder trial, and that the order for the prohibition on reporting made by his Honour is necessary to prevent prejudice to the proper administration of justice. We are also of the view that it is otherwise in the public interest for the order to be made and that that public interest significantly outweighs the public interest in open justice. In our opinion, this is an exceptional case in which it is necessary to make an order prohibiting publication in the terms made by his Honour.

76. We also make the following additional comments. The appellants indicated that the direction that the two trials be conducted back-to-back was a matter of case management and referred to the comments of Spigelman CJ in John Fairfax Publications v District Court of NSW to which we have referred above at [36]. Although Spigelman CJ indicated that there may be good administrative reasons why trials should be held back-to-back, the position in the present case goes well beyond administrative arrangements of court listings. The matters articulated by the primary judge at [74]-[76], set out above at [44]-[47], are matters that are fundamental to the proper administration of justice.

77. In particular, it is essential that persons charged with criminal offences have those charges determined as early as is possible in the criminal justice system. Further, such persons should not be denied their liberty for lengthy periods pending trial. It is likewise fundamental that witnesses give their evidence, not only untrammelled by threats should they do so, but as soon as possible so as to protect the integrity of the evidence, which may not only be infected by fear of personal danger, but by the normal human processes of fading memory.

The take down orders

Primary judge’s reasons

78. In the take down judgment, the primary judge made orders that certain articles be removed from the websites of the appellants. His Honour, at [21], accepted that the articles could be grouped into seven categories, as follows:

“A: Articles which published the names and other information identifying police informants.

B: Articles which connected the accused to other offences which are not to be referred to in the present trial.

C: Articles which referred to the accused Farhad Qaumi having been accused of previous murders in relation to which he was acquitted. Such evidence has been ruled to be inadmissible in the present trial: R v Qaumi & Ors (No 6) [2016] NSWSC 115.

D: Articles that referred to the accused’s bail status and criminal history and propensity for violence.

E: Articles that link to a video showing the rest of the accused.

F: Articles which provided opinions apparently emanating from senior police officers providing opinions on matters to be decided by the jury.

G: Articles which publish the name and information that might identify police informant known as witness M.”

79. His Honour determined, at [24] of the take down judgment, that these categories, except A and G, had the capacity, to varying degrees, to influence a juror who read and digested that material, depending upon the content of individual publications. At [25], his Honour considered the material in categories B-F could be further classified into three sub-categories: first, articles referring to the alleged murder of Joseph Antoun; secondly, the article that referred to Farhad Qaumi committing previous killings; thirdly, the articles that referred, “particularly in sensationalist terms, to Mr Zarshoy’s criminal history and propensity for ‘extreme violence’”

79. In determining whether to make the orders, his Honour had regard to three specific matters. First, whether it would be futile to make the orders having regard to the fact that some articles had been extensively reproduced on other websites, including on overseas websites which were beyond the reach of the jurisdiction of the court.

80. Secondly, whether directions to the jury would be sufficient to avoid any prejudice that existing publicity might have on the integrity of each of the trials.

81. Thirdly, the practical implications of making takedown orders, and in particular, whether by virtue of the proposed orders, the articles in question would effectively be permanently removed from the Internet because of the time and disproportionate cost of republishing the articles at the conclusion of the trials.

Futility and publication on overseas websites

83. There was evidence before his Honour that some of the articles had been published on overseas websites and, in the case of one article, the website on which it was published was registered in New Zealand. The consequence was that whatever order his Honour might make, it would not be enforceable outside of Australia. In Fairfax Digital Australia and New Zealand v Ibrahim, Basten JA, at [76], as the primary judge noted, had observed that an order would fail the test of necessity if it was futile, but that the mere fact that material was on overseas websites did not of itself mean that a takedown order would be futile. In Perish; Lawton at [44], Price J observed that “the inability of a court to remove all offending material does not necessarily lead to a conclusion that the provision of the relief sought would be futile”.

84. His Honour also noted a submission that the owners of search engines such as Google were not represented before his Honour. However, his Honour referred to the statement of R A Hulme J in Debs, at [24], that a court is empowered by the Act to make orders without notice to all those who might be affected. Basten JA in Fairfax Digital Australia and New Zealand v Ibrahim, considered that this raised an issue by virtue of the fact that the Suppression Act, s 16, provides for a criminal penalty for breach of an order. Nonetheless, the primary judge, at [36] of the take down judgment, considered it relevant that there was some evidence from which it could be inferred that removal of the most potentially prejudicial articles would have the desired effect.

85. His Honour was also conscious of the difficulty in determining whether an order would be futile in light of the sheer volume of data on the World Wide Web. In this regard, there was evidence before his Honour that a search of the name “Jamil Qaumi” on the Google search engine produced 33,000 results in 0.19 of a second and a similar search on the Bing search engine produced 11,500 results. His Honour observed, at [37] of the take down judgment, that to “order the ‘take down’ of some 25 articles would seem at first glanced to be merely scratching at the surface”. Nonetheless, his Honour accepted that it had been demonstrated by the removal of one of the items that there had been “some effect” in reducing the information that was readily available by searching the Internet.

86. His Honour concluded on this issue that, notwithstanding the concerns raised by Basten JA in Fairfax Digital Australia and New Zealand v Ibrahim, which he had taken into account, he did not understand that it was suggested in that case that the decisions in Debs and Perish; Lawton were wrong.

The futility issue and jury directions

87. His Honour then considered the authorities dealing with the ability of jurors to put to one side prejudicial publicity, and the assumption that jurors will obey directions and decide the case on the evidence adduced in the matter: see Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [21]. By reference to the observations made in Perish and Debs, his Honour observed, at [43] of the take down judgment, that whilst the assumption was undoubtedly correct in respect of “the overwhelming majority of jurors”, there were examples where jurors had not obeyed directions. Accordingly, his Honour reached the view it would be not be futile to order that the “more troubling articles in the three categories identified … be taken down”.

Practical considerations

88. Finally, his Honour accepted the possibility that the removal of the articles might mean that, for business and economic reasons, they would not be republished at the conclusion of the trials. Nonetheless, his Honour considered that these items had been online for a considerable period of time and, in circumstances where the media would be able to fully report on the evidence in, and outcome of the trial in due course, he did not consider the practical difficulties to which the media parties had referred “to be a significant interference with open justice of the public’s ‘right to know’”: take down judgment at [57].

Consideration

89. Notwithstanding the very careful consideration his Honour gave to the making of the orders, and the views expressed by experienced trial judges in Perish and Deb, we have come to the conclusion that the take down orders would not result in the articles being sufficiently removed from the internet for the orders to be effective. In other words, we consider that it would be futile to make the orders.

90. We have reached this conclusion notwithstanding that there was evidence that the removal of one item had had some effect in reducing the information available to a searcher on the internet. We are reinforced in this conclusion by two factors. First, much of the material is old. Secondly, we consider that a trial judge will be able to give adequate directions to a jury that they must determine the matter on the evidence before the Court. In this regard, we give full effect to the received wisdom of the courts, having conducted jury trials over the years, that juries act responsibly and in accordance with their oath, including in complying with the directions of the trial judge.

91. Accordingly, we would allow the appeal in relation to the take down orders.

Non-publication of this judgment

92. For the same reasons as we have given in upholding the non-publication order of the trial judge, an order under the Suppression Act for non-publication of this judgment should be made.

Orders

93. In each matter:

1. 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 Appeal on Tuesday 3 May 2016 or this judgment until the conclusion of the trial of Farhad Qaumi and Mumtaz Qaumi in relation to the murder of Joseph Antoun, or until further order;

2. Order (1) above is to apply throughout the Commonwealth and is made on the basis of necessity to prevent prejudice to the proper administration of justice;

3. Grant leave to appeal;

4. Appeal dismissed insofar as it relates to the non-publication orders made by Hamill J on 24 March 2016;

5. Appeal allowed insofar as it relates to the take-down orders made by Hamill J on 24 March 2016;

6. Set aside Orders (1)-(13) made by Hamill J in relation to Order (5) above.

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Decision last updated: 03 April 2017