R v Dirani (No 33)

[2019] NSWSC 288

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Dirani (No. 33) [2019] NSWSC 288
Hearing dates:	13 March 2019, 14 March 2019
Date of orders:	14 March 2019
Decision date:	29 March 2019
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	Publication of reasons for decision on 14 March 2019 refusing media applications for access to Exhibits E, F and AJ.
Catchwords:	CRIMINAL LAW - trial - conspiracy to do acts in preparation for terrorist act - alternative count of knowingly taking part in supply of firearm - jury retired to consider verdict - application by media interests for access to trial exhibits to permit publication and broadcast after verdict - objections by Crown and Accused to release to media of certain photographic and electronic exhibits - application for access refused before delivery of verdict - publication of reasons for ruling - applications considered under Practice Note SC Gen 2 and general law - relevant discretionary factors considered - factors especially relevant to terrorism trials considered - media applications for access to certain photographic and electronic exhibits for copying purposes declined
Legislation Cited:	Criminal Procedure Act 1986 Practice Note SC Gen 2 “Supreme Court - Access to Court Files”
Cases Cited:	Attorney General v Guardian Newspapers (No. 2) [1990] 1 AC 109 Burrell v R [2008] NSWCCA 276 David Syme & Co Limited v General Motors - Holden’s Limited (1984) 2 NSWLR 294 Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 HIH Insurance Limited (In Liquidation) v General Re Insurance Australia Limited [2006] NSWSC 128 John Fairfax Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 R (Cth) v Elomar and Ors (No. 3) [2008] NSWSC 1443 R v Abdallah (No. 3) [2015] NSWSC 121 R v Alou (No. 4) (2018) 330 FLR 402; [2018] NSWSC 221 R v Benbrika and Ors (No. 26) [2008] VSC 452 R v Brewer (No. 1) [2015] NSWSC 1471 R v Dirani (No. 22) [2018] NSWSC 1155 R v Dirani (No. 32) [2019] NSWSC 275 R v Gatt (No. 5) [2018] NSWSC 447 R v Hemming [2015] VSC 351 R v Jovanovic (2014) 285 FLR 108; [2014] ACTSC 98 R v LMW [1999] NSWSC 1111 R v Sam (No. 5) [2009] NSWSC 543 R v Sam (No. 16) (2009) 196 A Crim R 138; [2009] NSWSC 544 R v Wran [2016] NSWSC 1026 R v Xu (No. 1) (2005) 152 A Crim R 17; [2005] NSWSC 73 Registrar of the Supreme Court (NT) v Nationwide News Pty Limited [2018] NTSC 22 Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) Mustafa Dirani (Accused)
Representation:	Counsel: Mr PR McGuire SC; Mr M Kalyk (Crown) Mr M Tedeschi AM QC (Accused) Mr D Sibtain (for Channel 9, Channel 10 and Australian Broadcasting Commission)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Birchgrove Legal (Accused)
File Number(s):	2015/335067
Publication restriction:	---

Judgment

1. JOHNSON J: On 11 March 2019, the jury retired to consider its verdict in the trial of the Accused, Mustafa Dirani, upon an indictment charging conspiracy to do acts in preparation for a terrorist act with an alternative count of knowingly taking part in the supply of a firearm.

2. Whilst the jury was deliberating, applications were made by media interests for access to trial exhibits to permit publication and broadcasting of their contents following the delivery of verdict. On 12 March 2019, I heard submissions from the Crown and Senior Counsel for the Accused and made a number of rulings and provisional rulings on the media applications: R v Dirani (No. 32) [2019] NSWSC 275.

3. As the judgment in R v Dirani (No. 32) made clear, it was open to media interests to appear to press an application for access to exhibits which I had indicated provisionally would be refused.

4. On 13 and 14 March 2019, Mr Sibtain of counsel appeared for Channel 9, Channel 10 and the Australian Broadcasting Corporation. He pressed an application for access to Exhibits E, F and AJ, which was opposed by the Crown and Senior Counsel for the Accused.

5. Access was sought as well to other exhibits with that application not being opposed by the parties. Access was granted to these other exhibits.

6. Immediately prior to the delivery of a verdict by the jury on 14 March 2019, I made an order refusing the media application for access to Exhibits E, F and AJ and stated that I would publish my reasons for this ruling at a later date. This judgment contains my reasons for that ruling.

7. I note that the jury returned a verdict of guilty to the first count on the indictment, an offence of conspiracy to do acts in preparation for a terrorist act contrary to ss.11.5(1) and 101.6(1) Criminal Code (Cth).

The Exhibits to Which Access was Sought and Refused

8. It is appropriate to describe the three exhibits in relation to which access was refused to the media on 14 March 2019.

9. It may be taken that the media applications sought access to these exhibits for the purpose of copying and later publication and broadcast. The applications were not confined to inspection of the exhibits so as to acquire an understanding of their contents.

10. It was common ground at the trial that the evidence revealed that 15-year old Farhad Mohammad shot dead Curtis Cheng outside the New South Wales Police Headquarters in Charles Street, Parramatta at about 4.30 pm on Friday, 2 October 2015. The firearm used was a revolver which Talal Alameddine had supplied earlier that afternoon to Raban Alou, who then handed the weapon to Farhad Mohammad inside the Parramatta Mosque between 3.58 pm and 4.04 pm that day. After the shooting of Mr Cheng, Farhad Mohammad fired shots at the New South Wales Police Headquarters building and at two Special Constables who emerged from that building. During an exchange of gunfire with the Special Constables, Farhad Mohammad himself was shot dead.

11. To the extent that it has any bearing on the media applications, an understanding of the Crown case against the Accused at trial may be found in earlier judgments of the Court, including R v Dirani (No. 22) [2018] NSWSC 1155, a judgment containing reasons for refusing an application for a directed verdict of acquittal at the conclusion of the Crown case.

12. Exhibit E is a chart entitled “Membership in ‘The Bricks’ WhatsApp Group and Association Links”. The document identifies by way of names, photographs and dates of birth, Raban Alou, Milad Atai and the Accused. In addition, Exhibit E identifies by name, photograph and date of birth nine other persons who were members of the “The Bricks” WhatsApp group. Various lines and words appear on the chart suggesting associations between persons including some contentious areas.

13. Exhibit E was tendered as an exhibit early in the trial to introduce the names of a number of persons to the jury to allow an understanding of the detailed documentary and oral evidence which was to follow. At all times, the Crown made clear that the persons identified in Exhibit E (apart from Raban Alou, Milad Atai and the Accused) were not said to be criminally involved in the conspiracy charge against the Accused. This aspect was reinforced during the trial through detailed cross-examination by Senior Counsel for the Accused of the case officer, Detective Sergeant Mardi Forsyth.

14. Exhibit F is a disk containing a compilation of CCTV footage of events from about 3.48 pm on 2 October 2015 depicting Farhad Mohammad at various locations inside the Parramatta Mosque until 4.09 pm, with him then departing the Mosque and walking in the streets of Parramatta towards the New South Wales Police Headquarters in Charles Street, Parramatta where the murder of Curtis Cheng took place. Exhibit F ends with footage of Farhad Mohammad before he reached the vicinity of the New South Wales Police Headquarters, so that the terrorist act itself is not depicted.

15. The footage in Exhibit F inside the Parramatta Mosque depicts other people, as well, who (apart from Raban Alou) were incidentally and innocently in the Mosque at that time for purposes quite unrelated to the planned terrorist attack.

16. Exhibit AJ is a USB stick comprising a CCTV compilation of events at various locations and times in the period 29 September 2015 to 2 October 2015. Exhibit AJ depicts events involving a number of persons including the Accused, Raban Alou, Farhad Mohammad and his 20-year old sister, Shadi Mohammad.

17. As noted in R v Dirani (No. 32) at [17], the Crown prepared a USB stick (MFI 68) which contains only the surveillance footage of the movements of the Accused, Raban Alou and Talal Alameddine from the time the Accused and Raban Alou left the Parramatta Mosque in separate vehicles at about 1.26 pm on 2 October 2015 and then travelled to Jones Park, Mays Hill where a meeting took place between Raban Alou and Talal Alameddine. Thereafter, the men travelled in their vehicles in convoy to Warwick Road, Merrylands, where Raban Alou and Talal Alameddine stood together talking on the footpath for some minutes with the Accused sitting nearby in his vehicle. Talal Alameddine then walked to his home in the next street whilst the Accused and Raban Alou drove in their separate vehicles to Merrylands Oval car park where they waited for some time for the arrival of Talal Alameddine, who travelled to that location on a bicycle. After a further discussion between Raban Alou and Talal Alameddine, with the Accused being in the vicinity nearby, Talal Alameddine departed on his bicycle. Then the Accused and Raban Alou travelled in their separate vehicles to a location in Lane Street, Wentworthville where they remained for some time. MFI 68 concludes at a point when the Accused departed that location in his vehicle at about 2.42 pm.

18. The footage extracted in MFI 68 was of considerable importance as evidence in the trial. The media were granted access to MFI 68 (including access for copying) with the consent of the parties in the trial.

19. The balance of Exhibit AJ (other than MFI 68) contains surveillance and CCTV footage at different locations in the period 29 September to 2 October 2015. This includes footage of Farhad Mohammad (and others) at different times inside and outside the Parramatta Mosque, and Shadi Mohammad with Farhad Mohammad on occasions before her departure from Australia on 1 October 2015 to travel to the Middle East.

20. Exhibit AJ also contains extensive footage of other persons inside the Parramatta Mosque for innocent purposes associated with prayer and religious devotion with these persons being entirely unconnected to any plan to commit a terrorist act. Footage also includes a large number of persons who emerged from the Parramatta Mosque after the prayer service in the early afternoon of Friday, 2 October 2015 with those persons standing in Marsden Street talking amongst themselves before dispersing. Although Raban Alou and the Accused were present in Marsden Street after the prayer service, the other persons depicted in the footage were not criminally involved in these events.

Submissions on the Application

21. Submissions made by counsel on this application on 13 and 14 March 2019 are contained in the transcript of the summing up (pages 148-156, 164-198). It is not necessary to set them out in detail in this judgment. What follows is a brief summary of those submissions.

22. Whilst accepting that the media had no right of access to exhibits, Mr Sibtain emphasised the open justice principle and submitted that, where exhibits were tendered in a criminal trial in open court without being subject to a non-publication order or suppression order, the exhibits ought be made available for publication or broadcast by the media unless the Court was satisfied that it was necessary that they not be made available in that way.

23. To the extent that a number of authorities had referred to the trial Judge having a discretion as to whether to release exhibits, Mr Sibtain submitted that the discretion was not a wide-ranging one but was, in effect, a narrow function to be exercised with strong emphasis to be given to the open justice principle.

24. Mr Sibtain made broad submissions by reference to Exhibits E, F and AJ although he had not seen any of the material contained in those exhibits so that his argument could not rise above a level of generality.

25. Mr Sibtain submitted that any concerns with respect to the privacy of persons depicted incidentally both inside and outside the Parramatta Mosque could be met by pixelating their faces.

26. The Crown submitted that a grant of access to the media to Exhibit E, leading to its publication as a chart, would give rise to a distorted and misleading understanding of the contents of the exhibit and the persons depicted in it with the exception of Raban Alou, Milad Atai and the Accused.

27. With respect to the CCTV and surveillance footage contained in Exhibits F and AJ, the Crown submitted that, having regard to the interests of the administration of justice, there were six compelling reasons why access to those exhibits ought be denied.

28. Firstly, it was submitted that it was appropriate to protect the privacy of persons attending the prayer session at the Parramatta Mosque on 2 October 2015 and the images as well of those persons located in the streets of Parramatta. The Crown submitted that pixelating the faces of persons not involved in this criminal enterprise would not guard against identification of these persons, given the distinctive features which would remain visible including clothing and mannerisms. Given the subject matter of the trial, the Crown submitted that even pixelated images of persons would likely lead to speculation as to their identity and expose them to voyeurism and sensationalism and a form of guilt by association.

29. Secondly, the Crown submitted that the Court needs to take into account the possible impact of any publication or broadcast upon future juries including, if the Accused was convicted and successfully appealed against conviction, the prospect that he may stand trial at a later time upon these charges.

30. Thirdly, the Crown submitted that the release of the images contained in Exhibits F and AJ would encourage voyeurism and sensationalism. In this regard, the Crown pointed to the potential use of images of Farhad Mohammad and Shadi Mohammad contained in Exhibits F and AJ as sources of future propaganda on the part of proponents of violent jihad, including Islamic State, which could be propagated electronically if the material was released to the media. The Crown pointed to evidence in the trial which revealed the praise and adulation extended to Farhad Mohammad as a “martyr” who had died in the cause of Islamic State. The Crown submitted that the footage in Exhibit F (in particular) could be utilised for propaganda purposes to display what may be described as the “death march” or “suicide march” of Farhad Mohammad as he moved from the Parramatta Mosque through the streets of Parramatta, dressed in a black dishdasha, towards the scene of the crime.

31. Fourthly, the Crown submitted that the release of these exhibits would encourage irresponsible Internet access not by the media, but by others who would pick up and republish the footage on the Internet both in Australia and overseas. The fourth submission overlapped with the third submission in that this argument raised the prospect of promotion of Farhad Mohammad as a martyr, and the radicalised Shadi Mohammad, in a similar way given the evidence at the trial of her death in an American air strike in 2016 when living in Islamic State territory, as a supporter of that terrorist organisation.

32. Fifthly, the Crown submitted that it was appropriate for the Court to take into account the likelihood of further grief and distress being caused to families if this material is released and broadcast. The Crown referred principally to the family of Curtis Cheng who would suffer grief and distress as a result of the widespread broadcast (and permanent availability of material for broadcast) of images of Farhad Mohammad, Shadi Mohammad and others who have pleaded guilty and been sentenced for their offences, including Raban Alou and Milad Atai.

33. The Crown pointed, as well, to the prospect of additional grief and distress to the remaining members of the family of Farhad Mohammad arising from the prospect of ongoing broadcasting on various electronic platforms of footage contained in these exhibits.

34. Sixthly, the Crown submitted that the Court should take into account the effect upon possible imitators where persons may be encouraged by broadcasting of this material to emulate the actions of Farhad Mohammad. The Crown pointed in this respect to evidence in the trial of persons praising the acts of Farhad Mohammad. Reference was made as well to an incident in Sydney where a person is said to have sought to emulate the acts of Farhad Mohammad.

35. Mr Tedeschi QC, for the Accused, supported the submissions made by the Crown in their entirety. He submitted, as well, that the Court should not give access to the footage inside the Parramatta Mosque because of the prejudice and stereotyping of members of the Islamic community in Australia generally, in that allowing material of this type to be broadcast would tend to encourage stereotyping and create additional prejudice.

Some Relevant Principles

36. The principle of open justice is a fundamental axiom of the Australian legal system and it is appropriate to have regard to the principle when determining applications for access to exhibits: John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 (“Fairfax v Ryde Local Court”) at 525 [60].

37. Neither the media, nor the public at large, have a right of access to court documents. The open justice principle is a principle and not a freestanding right. There is no common law right to obtain access to a document on the court record: Fairfax v Ryde Local Court at 521 [29]-[31].

38. There is a public interest in facilitating fair and accurate reporting of proceedings in court: Fairfax v Ryde Local Court at 523 [47]. 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, and nothing should be done to discourage fair and accurate reporting of proceedings: John Fairfax Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 at 353 [20]; Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at 321 [33]. It has been said that the media are “the eyes and ears of the general public”, not all of whom can attend court proceedings: Attorney General v Guardian Newspapers (No. 2) [1990] 1 AC 109 at 183. An application for media access to exhibits should proceed on the prima facie assumption that a fair and accurate report of the trial will occur: R (Cth)v Elomar and Ors (No. 3) [2008] NSWSC 1443 at [24].

39. In Registrar of the Supreme Court (NT) v Nationwide News Pty Limited [2018] NTSC 22, Grant CJ said at [21] (footnote omitted):

“The requirement that proceedings be held in open court does not oblige the court to provide access to exhibits and court records. A proceeding is properly conducted in open court if the public has a right of admission to that court which is reasonably and conveniently exercisable. An open court does not necessarily become ‘closed’ because there is no right to access exhibits or court records, or because a request by a member of the public or media for access to exhibits or court records is refused.”

I agree with this general statement of Grant CJ which accords with authority.

40. It is appropriate to refer to s.314 Criminal Procedure Act 1986 which states:

“314    Media access to court documents

(1)    On application to the registrar, a media representative is entitled to inspect any document relating to criminal proceedings, at any time from when the proceedings commence until the expiry of 2 working days after they are finally disposed of, for the purpose of compiling a fair report of the proceedings for publication.

(2)    The documents that a media representative is entitled to inspect under this section are copies of the indictment, court attendance notice or other document commencing the proceedings, witnesses’ statements tendered as evidence, brief of evidence, police fact sheet (in the case of a guilty plea), transcripts of evidence and any record of a conviction or an order.

(3)    The registrar is not required to make documents available for inspection if the documents are not in the possession or control of the registrar.

(4)    The registrar must not make documents available for inspection if:

(a)    the proceedings are subject to an order prohibiting their publication or a suppression order, or

(b)    the documents are prohibited from being published or disclosed by or under any other Act or law.

(4A)    This section does not limit the operation of any other Act or law under which a person may be permitted to inspect documents relating to criminal proceedings.”

41. It has been said in a number of decisions that s.314 has no application to circumstances where the media seek access to electronic and photographic exhibits in a criminal trial. In R (Cth) v Elomar and Ors (No. 3), Whealy J said at [10]:

“… I do not consider that s 314 of the Criminal Procedure Act has any bearing on the existence and extent of my power as trial judge to permit the media to have access to the exhibits in question. Section 314 is a relatively confined power conferring jurisdiction on the Registrar to allow access to the media to documentary material in his or her possession. The section says nothing as to the extent of the Court's power to allow access in an appropriate case to exhibits of all kind that may be in its possession or control during the trial.”

42. In R v Gatt (No. 5) [2018] NSWSC 447, Schmidt J held at [5] that s.314(2) did not extend to an application for CCTV footage which was an exhibit at a trial.

43. In R v Abdallah (No. 3) [2015] NSWSC 121, Adamson J noted (at [14]) the joint submission of the parties that s.314(2) did not apply to an application by the media for access to CCTV footage and an audio recording which were exhibits at the trial. In R v Brewer (No. 1) [2015] NSWSC 1471, Bellew J at [8] noted that neither party in that case submitted that CCTV footage fell outside the terms of s.314(2).

44. With respect to s.314, I agree with what Whealy J said in R (Cth) v Elomar and Ors (No. 3) and Schmidt J in R v Gatt (No. 5). Section 314 Criminal Procedure Act 1986 is directed at a different scenario. It does not apply to an application by the media for access to exhibits made to the trial or sentencing Judge during or after the criminal proceedings at which the Judge has presided, in particular where the application relates to video, audio or other electronic exhibits.

45. Apart from the text of the section itself, there is nothing in the legislative history of s.314 which supports a construction that the provision applies to media applications such as those being considered in this judgment.

46. The applications made by the media representatives in the present case sought access to trial exhibits by way of applications made for the purpose of Practice Note SC Gen 2, “Supreme Court - Access to Court Files”. Paragraphs 6 and 7 of Practice Note SC Gen 2 state:

“6.   Access to material in any proceedings is restricted to parties, except with the leave of the Court.

7.   Access will normally be granted to non-parties in respect of:

*   pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential;

*   documents that record what was said or done in open court;

*   material that was admitted into evidence; and

*   information that would have been heard or seen by any person present in open court,

unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist.”

47. Reference has been made to this Practice Note in a number of decisions where access is sought by the media to exhibits tendered in criminal trials in the Supreme Court: R v Xu (No. 1) (2005) 152 A Crim R 17; [2005] NSWSC 73 at 20-21 [17]-[23]; R v Sam (No. 5) [2009] NSWSC 543 at [4]; R v Sam (No. 16) (2009) 196 A Crim R 138; [2009] NSWSC 544 at 140 [5]; R v Abdallah (No. 3) at [14]; R v Brewer (No. 1) at [9]; R v Wran [2016] NSWSC 1026 at [8], [17] and R v Gatt (No. 5) at [5].

48. Where, as in the present case, the media applications for access are made to the Judge who is (or has) presided at the trial or sentencing hearing, it should be kept in mind that the Judge has control of the proceedings. Further, as Grant CJ observed in Registrar of the Supreme Court (NT) v Nationwide News Pty Limited at [25], the Judge “will have read or otherwise viewed the exhibits adduced during the proceedings and be familiar with the forensic and public interest considerations involved” with these features to be applied in determining any media application.

49. Where application is made by the media to the trial or sentencing Judge, whether under Practice Note SC Gen 2 or otherwise, the Court will exercise a discretion in determining whether access will be granted. The exercise of discretion will take into account all relevant considerations, including the principles referred to at [36]-[38] above, together with other features which bear upon the particular exhibit in the case at hand. Courts have recognised and emphasised the existence of such a discretion, in particular where the media seek access to video, audio or photographic exhibits for the purpose of copying and subsequent publication and broadcast: R v Xu (No. 1) at 20-24 [18]-[43]; R v Benbrika and Ors (No. 26) [2008] VSC 452 at [4]-[8]; R v Sam (No. 5) at [6]; R v Sam (No. 16) at 141 [12]; Registrar of the Supreme Court (NT) v Nationwide News Pty Limited at [29] and R v Gatt (No. 5) at [6].

50. Further, the exercise of discretion to be undertaken is not a narrow process. The media application in this case is not merely to inspect or view the exhibits so that a written description of their contents can be published as part of a fair and accurate report of the evidence in the trial: cf R v Abdallah (No. 3) at [19]. The application is to copy the exhibits for the purpose of electronic publication and broadcasting. There are additional factors to be considered on such an application.

51. Where application is made for access under Practice Note SC Gen 2, it is appropriate to keep in mind the statements of Hoeben J (as his Honour then was) in HIH Insurance Limited (In Liquidation) v General Re Insurance Australia Limited [2006] NSWSC 128 (“HIH Insurance”) at [10] and [13]:

“10    Both the applicants and the respondents base their submissions on Practice Note SC Gen 2 as though the practice note was a rule of court. This, it seems to me, misunderstands the function of a practice note. Practice notes are issued with the authority of the court, by the Rule Committee, usually under the signature of the Chief Justice. Practice notes are clearly important in influencing the practice and procedures of the court, but they are not rules of court. In my opinion, their principal function is to provide guidance to the Profession as to how the broad discretion conferred on the court in relation to access to court files is exercised.

…

13    As indicated, the practice note offers authoritative guidance as to how the discretion which resides in the Court would ordinarily be exercised. In formulating the Practice Note no doubt regard was had to the underlying principles and distinctions made in the case law which has developed over recent years in Australia. It is by recourse to those underlying principles that the Practice Note provides guidance though without preordaining the outcome. The context and circumstances in which the application is made will also significantly influence the way in which the Court exercises the discretion.”

52. Significantly, Hoeben J stated at [21]-[22] with respect to documents which had been used in open court:

“21    As a start point I do not accept the proposition put forward by the applicants that the principle of open justice requires that access be granted unless there are exceptional circumstances why it should not be granted. This matter was considered in John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512 at [29] where Spigelman CJ said:

‘Neither the claimant, nor the public at large, have a right of access to court documents. The ‘principle of open justice’ is a principle, it is not a freestanding right. It does not create some form of freedom of information Act applicable to courts. As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant access. However, it remains a principle and not a right.’

In that judgment the Court noted that there was no common law right to obtain access to a document filed in proceedings and held as part of a court record.

22    To the extent that the Practice Note provides guidance on this issue, it does not assist the applicants in the absence of the applicants putting forward a proper reason for why they should have access to the documents sought at this time.”

53. In R v Abdallah (No. 3) at [15], Adamson J posed the task of the Court on the media application for access in the following way:

“As the material sought was played in open court, access ought be granted unless I consider that the material, or portions of it, should be kept confidential.”

54. In R v Xu (No. 1) at 21 [23], [26], Kirby J appears to have approached the application for media access upon the basis that there was a prima facie right of media access to exhibits unless “wholly exceptional circumstances” exist. There are difficulties with this approach. The authorities to which his Honour referred in support of this proposition deal with applications to close the Court, not media applications for access to exhibits: R v LMW [1999] NSWSC 1111, applying David Syme & Co Limited v General Motors - Holden’s Limited (1984) 2 NSWLR 294 at 310.

55. In my view, there is no foundation for adding a “wholly exceptional circumstances” gloss to the discretionary exercise required where an access application is made under Practice Note SC Gen 2 or the general law. In HIH Insurance at [21] (see [52] above), Hoeben J rejected the existence of an “exceptional circumstances” test in determination of an access application made under the Practice Note. The approach of Adamson J in R v Abdallah (No. 3) (at [53] above) accords with this approach. It will be observed that the only reference to “exceptional circumstances” in Practice Note SC Gen 2 (at [46] above) appears in paragraph 7 concerning material not otherwise referred to in the paragraph. That “exceptional circumstances” test has nothing to do with the present application.

56. To the extent that my conclusion with respect to R v Xu (No. 1) involves a departure from the approach taken by Kirby J, I have had regard to the rule of comity referred to in Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at 193 [57] and express the view respectfully that Kirby J was wrong in introducing a “wholly exceptional circumstances” test.

57. To the extent that the exercise of discretion in a media application for access to trial exhibits raises broader questions concerning the administration of justice, it should be kept in mind that the concept of the administration of justice is a multifaceted one: Rinehart v Welker at 323 [39].

58. Where a media application for access to electronic exhibits is made whilst the jury trial is still on foot, there are additional factors to be taken into account in favour of refusal of the application until after verdict: R v Sam (No. 5) at [19]-[29]. After a verdict is returned, or in sentencing proceedings, these additional factors which applied during a jury trial will fall away.

59. Many factors may bear upon the exercise of discretion in a particular case, including:

1. the grief and distress which may result for the family of victims of violent crimes, including the fact that constant repetition of images can be quite traumatising for the immediate families of victims and also the community: R v Abdallah (No. 3) at [24]; R v Hemming [2015] VSC 351 at [33]; R v Brewer (No. 1) at [16]; R v Gatt (No. 5) at [11];

2. the fact that murders and other serious crimes are not “entertainment” and ought not be the subject of repeated electronic reporting unless there are proper reasons unconnected with “entertainment”: R v Hemming at [33];

3. the privacy of persons not said to be involved criminally in the events in question: R v Benbrika and Ors (No. 26) at [7]; R v Jovanovic (2014) 285 FLR 108; [2014] ACTSC 98 at 115 [42]-[43]; R v Abdallah (No. 3) at [23];

4. the fact that, even when published electronically by the media as part of a fair and accurate report of criminal proceedings, visual and audio evidence so captured will be let loose and available on the Internet or other social media platforms for replay and rebroadcasting with no realistic prospect of control or recall given the lack of current controls on further use of electronic material: Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at 71-73 [71]-[80]; R v Abdallah (No. 3) at [21].

60. Concern about capture and further broadcasting of visual evidence on the Internet or other electronic platforms for criminal purposes is especially relevant in the area of terrorism offences. The proponents of violent jihad have demonstrated a capacity for sophisticated electronic propaganda to promote their cause, whether in the name of al-Qaeda, Islamic State or another prescribed terrorist organisation. As will be seen, the praise of so-called martyrs who have died in the commission of a terrorist act is exemplified by the evidence in this case concerning Farhad Mohammad. The murder of Curtis Cheng by Farhad Mohammad was the first case where the commission of a terrorist act in Australia in the name of violent jihad has caused the death of a person: R v Alou (No. 4) (2018) 330 FLR 402; [2018] NSWSC 221 at 404 [7].

61. The media access applications in R (Cth) v Elomar and Ors (No. 3) and R v Benbrika and Ors (No. 26) arose in the context of terrorism trials. However, those trials (fortunately) did not involve completed terrorist acts which had caused death, injury or destruction of property. There is an additional feature arising in the present case which must be considered in the context of this application.

62. With these considerations in mind, I move to explain my reasons for refusing the media applications in this case.

Reasons for Decision Refusing Access to Exhibits E, F and AJ

63. The importance of the open justice principle is to be emphasised together with recognition of the significant role of the media in informing the public as to what has happened in a criminal trial. The trial Judge has a discretion to release exhibits with that discretion to be exercised in the particular circumstances of the case.

64. I was satisfied that there is a risk that Exhibit E (if reproduced in the media) may be viewed simplistically, and in a misleading fashion, if it was taken (wrongly) that all the persons identified on the chart were in some way involved in criminal activity associated with the trial of the Accused.

65. The potential for Exhibit E to be misunderstood and to convey a misleading impression lay at the forefront of issues to be considered on the application by the media for access to it for publication. This was particularly so as journalists had been present in Court on few occasions during the trial. The media would not have acquired an understanding of the role of Exhibit E which would have occurred if journalists had been present regularly during the trial.

66. The Court was taken by Mr Sibtain to the decision of Whealy J in R (Cth) v Elomar and Ors (No. 3) where his Honour granted access during a criminal trial to photographs of weapons which had been tendered at the trial. I note that the media has already had access to the photograph of the firearm used to murder Curtis Cheng which is contained in Exhibit J.

67. With respect to Exhibits F and AJ, the privacy of persons who may be innocently and incidentally depicted in photographic evidence in a criminal trial is a relevant factor to be taken into account on such an application: R v Benbrika and Ors (No. 26) at [7]; R v Abdallah (No. 3) at [23].

68. It is necessary to keep in mind the vivid and permanent nature of video evidence which is capable of being broadcast and rebroadcast and further dissemination via the Internet and other electronic platforms. Once footage of this type is broadcast, it is not presently possible to control or recall. The material is available generally to not only responsible media outlets, but others who may seek to use or misuse it for their own sinister purposes.

69. This is a matter of particular significance where evidence arises in a terrorism case and where material such as that contained in Exhibits F and AJ includes CCTV footage taken in private religious premises where persons are gathered for the purpose of prayer and religious devotion. The capacity to misuse material of this type for the purpose of fanning prejudice is not farfetched in contemporary society and is an important factor to bear in mind in the exercise of discretion as to whether access to electronic exhibits ought be granted.

70. As noted earlier (at [60]), the circumstances giving rise to the murder of Curtis Cheng on 2 October 2015 constituted the first lethal attack in Australia by supporters of a prescribed terrorist organisation. Other prosecutions, including those in R v Benbrika and Ors (No. 26) and R (Cth) v Elomar and Ors (No. 3) involved proceedings for conspiracy to do acts in preparation for a terrorist act. Those trials did not involve a terrorist killing or circumstances where the terrorist killer was himself killed as occurred in the present case.

71. Here, there is a capacity for the killer, Farhad Mohammad, to be praised and described as a martyr by those supportive of Islamic State and other extremist jihadist groups. This is illustrated by Exhibit L in the trial, the Islamic State publication “Dabiq”, released on 18 November 2015 which, in the course of praising “the martyred ‘lone’ knights of the Khilafah who struck out against the kafir and apostate enemies near them” then stated:

“Amongst these brave knights of tawhid and jihad was fifteen-year old Farhad Khalil Mohammad Jabar, who on ‘2 October 2015’ struck the crusaders of Australia and killed one of their personnel.”

72. Elsewhere in the trial evidence, Raban Alou expressed delight in a recorded conversation with his wife, Sharna Perger, on 3 October 2015, describing Farhad Mohammad as “a soldier” and “a martyr” who had been “killed in the path of Allah” (Exhibit P). In other intercepted telephone conversations on 4 October 2015, Raban Alou referred to Farhad Mohammad as “a lion” who “will be in Paradise” (Exhibit P). It is not difficult to see how video evidence of Farhad Mohammad could be deployed in promotional propaganda by advocates of violent jihad.

73. Although the geographical boundaries of Islamic State have now been eliminated, it is widely known that supporters of Islamic State (and related terrorist groups) continue to operate in various parts of the world including the Philippines and elsewhere. Their propaganda machine, with videos broadcast on electronic platforms (some of which were adduced in evidence at the trial), is likely to continue to operate so that the praising of those who have died in the cause of Islamic State, characterised as martyrs, is likely to recur. Reference was made earlier (at [71]) to the publication in “Dabiq” in November 2015 which lauded the criminal acts of Farhad Mohammad in this way.

72. By reference to the six submissions advanced on behalf of the Crown and joined in by Senior Counsel for the Accused, I express the following conclusions.

73. I accept that the protection of privacy of persons who happened to be present in locations depicted in evidence, but who are not said to be involved criminally in the events in question, is a legitimate factor to take into account in determining whether to grant access to video footage in evidence.

74. It is the case that CCTV footage has become increasingly a form of evidence tendered in criminal trials. At times, CCTV footage depicts persons in public or private places, including persons not said to be criminally involved in the events which are the subject of the trial. In many cases, the use of pixelation or blurring of the faces of persons may be sufficient to protect those persons from unjustified linkage with criminal acts.

75. In this case, however, CCTV footage depicts persons in a private place of worship within the Parramatta Mosque and in a public street outside the Parramatta Mosque. I do not think that the use of pixelation or blurring of faces will serve to de-identify persons who are at those locations innocently for the purpose of attending a prayer meeting, and then standing in the street thereafter engaged in civil conversation. There are features of the persons which would allow identification even if their faces were obscured.

76. Further, the fact that CCTV footage depicts these persons in their place of worship provides an additional feature to be taken into account in the exercise of discretion.

77. The depiction of CCTV footage of persons worshipping in the Parramatta Mosque on the afternoon of 2 October 2015 adds nothing to the process of fair and accurate reporting of the evidence in the trial. There is no impediment to a written description of these events being reported by the media. Further, there is a significant overlap between concerns raised in the Crown’s first submission, and the third submission which raises legitimate concerns that the broadcasting of this footage may encourage both voyeurism and sensationalism concerning persons present in the Parramatta Mosque on that occasion. The Crown’s fourth submission overlaps with this as well, in that there is a concern that broadcasting of this material will make the footage available for irresponsible Internet access by persons with strong anti-Muslim beliefs.

78. The submission made by Mr Tedeschi QC picks up this theme as well (see [35] above) in that the broadcasting of this material and thus its consequential availability for Internet dissemination, may be used by persons interested in magnifying strong anti-Muslim feelings.

79. Although my ruling was made on 14 March 2019, it is impossible to disregard the terrible events which occurred the next day in Christchurch where many people were murdered in mosques at which they were present for peaceful religious purposes by way of Friday prayers. What is already in the public arena about that atrocity fortifies the concern that extremist anti-Muslim groups could use for criminal purposes, electronic evidence arising from a terrorism trial.

80. I am satisfied that these features constitute powerful reasons for refusing the media access to Exhibits F and AJ at this trial.

81. The Crown’s fifth submission raised a further significant issue. The broadcasting of images contained in Exhibits F and AJ may serve to magnify the grief and distress already being experienced by the family of Curtis Cheng. The capacity for repeated playing of images of persons and events on the afternoon of 2 October 2015 undoubtedly would have this adverse and damaging effect.

82. Further, the remaining members of the family of Farhad Mohammad may suffer grief and distress as well from the ongoing and open-ended broadcasting, no doubt repeated on electronic platforms, of Farhad Mohammad and even Shadi Mohammad as contained in Exhibits F and AJ.

83. These factors operate as well against a grant of access to the media to these exhibits.

84. The Crown’s sixth submission carries significant weight as well. It is known that another person has sought to imitate the acts of Farhad Mohammad by carrying out a violent attack in Sydney.

85. The Crown submission that release of this evidence to the media for broadcasting may bear upon a future trial, if the Accused succeeded on appeal and a retrial was ordered, attracts limited weight on this application. As in Burrell v R [2008] NSWCCA 276 at [16], this prospect is speculative. However, there are other powerful reasons for refusing the media application in this case.

86. I am satisfied that the interests of the administration of justice are served by the adoption of a cautious and conservative approach where the media seek access to electronic evidence tendered in a terrorism trial, given the particular capacity for such material to be misused by both those who advocate the use of violent jihad and those who advocate the use of violence against members of the Muslim community.

87. The ready availability of the images contained in Exhibits F and AJ would have real potential to serve the interests of one or other of these fixated groups, both of whom are minded to commit acts of gross criminality in Australia or elsewhere.

88. I do not consider that the open justice principle is compromised or restricted in any significant way by ruling that Exhibits F and AJ ought not be made available to the media for further broadcasting. I am fortified in this view by the making available of MFI 68, which permits broadcasting of significant evidence adduced at the trial of the Accused without the incidental identification of innocent persons.

89. Likewise, I do not consider that the open justice principle is compromised or restricted in any significant way by my ruling refusing the media access to Exhibit E for copying purposes.

90. It was for these reasons that I declined to grant the media access to Exhibits E, F and AJ, and an order was made to this effect on 14 March 2019, immediately before the jury delivered a verdict of guilty to the first count on the indictment.

Evidence Concerning Attendance by the Accused at the Markaz Imam Ahmad (“MIA”) College at Liverpool

93. In R v Dirani (No. 32), I explained at [28]-[31] why I was granting the media access to Exhibit 29, a statement of Senior Constable Birol Ozhan dated 2 January 2019 concerning the attendance of the Accused at the MIA College at Liverpool for a period in 2015.

94. In circumstances where journalists attended the trial infrequently so that any informed reporting of this part of the evidence may be difficult, it is appropriate to explain this evidence in further detail, unless there be any misunderstanding concerning the reference to the MIA College in evidence at the trial of the Accused.

95. Exhibit 29 disclosed that the Accused attended on 12 days in 2015 a part-time course which, if completed, would give rise to a Diploma of Islamic Studies.

96. The Crown called as an expert witness in the trial Dr Rodger Shanahan, who gave evidence on a range of topics relating to Islamist extremism. Dr Shanahan described a spectrum of beliefs amongst Sunni Muslims extending from one end of the spectrum which involved liberal and modern beliefs which rejected the use of violent jihad, to the other end of the spectrum which involved extremist or radical Salafist beliefs which supported the use of violent jihad and condemned, amongst others, Muslims perceived as modernists (T1469-1471, 1518-1520).

97. Dr Shanahan was aware of Sheikh Abu Adnan Mohammad, the Director of the MIA College, whom he “considered to be on the conservative side … a Salafist by inclination” (T1595.20-34). In cross-examination, Dr Shanahan confirmed that the MIA College adopted a Salafist approach which was a conservative Islamic approach to religion (T1601.5-10). Dr Shanahan agreed that he had not heard of Sheikh Abu Adnan Mohammad having encouraged anyone to commit acts of violence nor had he heard of anybody associated with teaching at the MIA College who had advocated violence in Australia or elsewhere (T1601.18-24).

98. Bearing on the Accused’s attendance at the MIA College in 2015 are messages which passed between him and other persons as located on the Accused’s iPhone 6 Plus (Exhibit BM).

99. Messages sent by the Accused included one on the afternoon of 30 June 2015 where he said “The worst of the ummah is not the Jews or the Shia or the Christians it’s the Modernist”. A little later, the Accused sent a message saying “The modernist play a key role in bringing the ummah to the bottom” (Exhibit BM, page 34).

100. Dr Shanahan expressed the opinion that statements of this sort reflected a “radical Salafist view” (T1580-1581). He said that the Accused’s view concerning “modernists” would be considered “a radical Salafist view of other Muslims” (T1583).

101. On 16 August 2015, the Accused was exchanging messages with another person who expressed criticism of Sheikh Abu Adnan Mohammad, with the Accused responding “No dignity … I’m out … I’m doing my own thing” (Exhibit BM, page 109).

102. On 13 September 2015, the Accused and Milad Atai exchanged messages on WhatsApp in which, at one point, Milad Atai said “That’s Abu Adnan” with the Accused responding soon after “Statements of ignorant deviants … show me now … where did he say this?” (Exhibit BM, pages 43-44). A little later on 13 September 2015, the Accused sent messages stating “Abu Adnan knows me … and my views … of the Khawaraj … he hasn’t said anything to me … ask him where he got this information … there is a lot of rumours going around … and it needs to be verified … cause if he talking out against the brothers I’m not going back” (Exhibit BM, pages 46-47). Soon after on 13 September 2015, the Accused sent messages saying “I’m going to have to have a meeting with the sheiks at Mia … If this is there stance … Sacking … Everything” (Exhibit BM, page 49).

103. The Crown submission at the trial was that the beliefs of the Accused were far more extreme than the teachings at the MIA College so that the Accused abandoned his studies at that place, with his comments about Sheikh Abu Adnan Mohammad pointing to his dislike of the teachings at the MIA College. Although the evidence at the trial indicated that the teachings of Sheikh Abu Adnan Mohammad and the MIA College reflected a conservative Salafist view, those beliefs were not said to be radical or extremist Salafist views supportive of violent jihad. This was the submission made by the Crown in the trial, which drew support from the Accused’s own messages which were critical of the teachings at the MIA College and his apparent decision to cease his attendances at that college.

104. Accordingly, the evidence at the trial (including Exhibit 29) pointed to the Accused undertaking a course in Islamic studies at the MIA College which reflected a conservative Salafist approach, but with the evidence disclosing the Accused’s dissatisfaction with the teachings at the MIA College, accompanied by the Accused’s own expressions which reflected radical or extremist Salafist views.

105. I have set out these references to the evidence and submissions advanced at the trial to allow Exhibit 29 to be understood in its context in case the media publishes its contents.

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Amendments

04 April 2019 - [21] - Amended page references.

Decision last updated: 17 May 2023