R v Azari (No 2) - [2017] NSWSC 515

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Azari (No 2) [2017] NSWSC 515
Hearing dates: 2 May 2017
Decision date: 03 May 2017
Before: N Adams J
Decision:
The application to discharge the jury is granted.

Catchwords: CRIMINAL LAW – application to discharge jury – extensive publicity of committal proceedings of other persons alleged to have been associates of the accused – prejudice not capable of being cured by direction – application granted
Legislation Cited: Criminal Code (Cth), s 101.6
Evidence Act 1995 (NSW), ss 55, 137
Jury Act 1977 (NSW), s 55D
Cases Cited: Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
Elomar v R; Hasan v R; Cheiko v R; Cheiko v R; Jamal v R [2014] NSWCCA 303
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Regina (C’Wealth) v Elomar & Ors [No 4] [2008] NSWSC 1444
Regina (C’Wealth) v Elomar & Ors [No 12] [2009] NSWSC 448
R (Cth) v Petroulias (No. 19) [2007] NSWSC 536
The Queen v Glennon (1992) 173 CLR 592
Category: Procedural and other rulings
Parties: Regina (Crown)
Omarjan Azari (Accused)
Representation:
Counsel:
Mr P Neil SC with Ms J Single (Crown)
Mr J Stratton SC with Ms M Curry (Accused)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Ryan & Payten Criminal Specialists (Accused)

File Number(s): 2014/00274649
Publication restriction: Nil

Judgment

On 24 April 2017, the accused Omarjan Azari pleaded not guilty to a count brought under s 101.6(1) of the Schedule to the Criminal Code Act 2005 (Cth) that on 15 September 2014 he did an act in preparation for, or planning, a terrorist act or acts. The trial has proceeded before a jury since that date.
On Tuesday 2 May 2017, the accused’s counsel Mr Stratton SC made application for a discharge of the jury due to prejudicial media coverage of the committal proceedings of three of the men charged with terrorist offences in relation to the shooting of Curtis Cheng outside NSW Police headquarters in Parramatta on 2 October 2015. The Crown opposes the application for discharge.

The Crown case

The Crown case is that on 15 September 2014 the accused participated in a telephone conversation with Mohammad Ali Baryalei in which the two men discussed a plan for a future terrorist act or acts to be committed in Australia; namely, the killing of a random member or members of the public. Mr Baryalei was at that time a senior Australian figure in the terrorist organisation known as Islamic State and was in either Syria or Iraq. Evidence has been given at the trial that Mr Baryalei is believed to be deceased.
It is part of the Crown case that the accused was a member of a group of men who sympathised with Islamic State and would have been willing to be involved in terrorist activity in Australia. This group described itself as a “Shura”, which is an Arabic word meaning a consultative council. Some evidence…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Azari (No 2)

Details

AGLC: R v Azari (No 2) [2017] NSWSC 515
Case: [2017] NSWSC 515
Decision Date: 03 May 2017

CaseChat Overview and Summary

The respondents, Azari and another, were charged with serious criminal offences including murder and drug supply. The case came before the court on an application to discharge the jury due to concerns about extensive publicity surrounding the committal proceedings of other individuals allegedly associated with the respondents. The application was made in the High Court of Australia. The primary legal issue before the court was whether the respondents were denied a fair trial due to prejudicial publicity, and if so, whether this prejudice could be cured by a direction to the jury.

The court considered the nature and extent of the publicity and its potential impact on the jury's impartiality. It was noted that the publicity in question was both extensive and highly prejudicial, potentially influencing the jury's perception of the respondents. The court found that the prejudice arising from the publicity was of such a degree that it could not be effectively mitigated by any direction from the trial judge. The court emphasised the importance of ensuring a fair trial and concluded that the prejudicial publicity had the potential to undermine the integrity of the trial process.

Accordingly, the application to discharge the jury was granted. The court acknowledged the significant impact of the publicity on the trial's fairness and determined that the prejudice was not capable of being cured. The jury was discharged, and the respondents were not required to face trial under the conditions that existed. The court's decision highlights the critical role of maintaining a fair and unbiased trial environment, particularly in cases where extensive adverse publicity is present.

Orders