Obeid v The Queen

[2016] HCATrans 5

[2016] HCATrans 005

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S265 of 2015

B e t w e e n -

EDWARD MOSES OBEID

Applicant

and

THE QUEEN

Respondent

Application for non‑publication orders

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 20 JANUARY 2016, AT 10.58 AM

Copyright in the High Court of Australia

MR G.O’L. REYNOLDS, SC:   I appear for the applicant with MR D.P. HUME.  (instructed by Breene and Breene)

MS W.J. ABRAHAM, QC:   If it please the Court, I appear for the applicant with MS S.F. BECKETT.  (instructed by Solicitor for Public Prosecutions)

HIS HONOUR:   Yes.  Will you have anything to say in relation to this application?

MR REYNOLDS:   I anticipate that I will not be saying anything, your Honour.

HIS HONOUR:   Yes.  Ms Abraham.

MS ABRAHAM:   I trust your Honour has now had a real chance to have a look at the material that has been filed in support.

HIS HONOUR:   Yes, I have.  I am broadly aware, from the material, of the nature of the orders that have been made and of the reasons for them.  I am provisionally inclined to make the order that you seek, although I am concerned about the period for which the order is sought.  Given the reasons for the making of the orders in the Supreme Court, would it be necessary, in your submission, for any order that I might make to extend beyond the commencement of the trial?

MS ABRAHAM:   The only concern about it being commencement and not conclusion is that if then the media publish – and he has tried to stop this trial numerous times, a jury having been empanelled, arguably that could be seen as prejudicial in the circumstances.

HIS HONOUR:   Once the jury is empanelled, the jury will be subject to the instructions of the judge.

MS ABRAHAM:   Of course.

HIS HONOUR:   That should be sufficient, should it not?

MS ABRAHAM:   It should.  I suppose that the risk one has is that in relation to the one occasion when there was a variation of the order, which was a fairly harmless variation to permit a statement that the trial was not to proceed in 2015, that in itself brought in other media reporting about ICAC and the like which is dealt with in the materials.  That is the concern.

HIS HONOUR:   How soon after the commencement of the trial would the jury be empanelled?

MS ABRAHAM:   I think it is anticipated that they get empanelled on the 10th and sent away till the 12th because there was some issue with counsel, if memory serves, about whether counsel ‑ ‑ ‑

HIS HONOUR:   Yes.

MS ABRAHAM:   In our submission, given the trial is anticipated to last – I think the estimate is two weeks if there can be agreement as to facts and four weeks if there is not, one is not talking about a terribly lengthy period.  One is not talking, for example, like a six month trial and the like.  The risks that could be avoided if the order was to the end of the – or the conclusion of the trial, in my submission does not – the delay factor or the extension factor, appreciating, of course, the reasons against making such an order.

HIS HONOUR:   Yes.

MS ABRAHAM:   But, in our submission, given what has occurred to date in relation to publicity to minimise any risk of prejudice the better date is the end – the conclusion of the proceedings.

HIS HONOUR:   Yes.  So give me an anticipated date for the conclusion of the trial.

MS ABRAHAM:   A month from 10 February assumes 10 March.  I do not know if that is a weekend or ‑ ‑ ‑

HIS HONOUR:   It is a Thursday, we will say 11 March.

MS ABRAHAM:   It may conclude earlier, as I understand it, if agreement can be reached between the parties as to a number of facts.

HIS HONOUR:   Yes.

MS ABRAHAM:   But that is not yet known. 

HIS HONOUR:   All right.  I am inclined then, on the material before me, to make an order which would extend only until 11 March and to give liberty to apply for a variation of that order.  Would you have anything to say about that?

MR REYNOLDS:   No, your Honour.

HIS HONOUR:   All right.  I will give reasons which will be published at a later date.  Does either party require me to give those reasons now?

MS ABRAHAM:   No.

MR REYNOLDS:   No, your Honour.

HIS HONOUR:   I will then proceed to make orders and I will publish my reasons on or after 11 March.  The orders that I make are as follows:

1.Pursuant to section 77RF(1)(a) of the Judiciary Act 1903 (Cth), until 11 March 2016 there be no publication of information tending to reveal the identity of the applicant in relation to (a) the application for special leave to appeal, (b) the application to stay the trial proceedings, and (c) the application for non‑publication orders.

2.On or before 11 March 2016, either party, or any person listed in section 77RG(2) of the Judiciary Act 1903 (Cth) have liberty to apply by summons and supporting affidavit for an order varying Order 1.

Those are the orders that I make.  The Court will now adjourn.

AT 11.06 AM THE MATTER WAS ADJOURNED