R v Hraichie (No. 2) - [2019] NSWSC 765

Supreme Court

New South Wales

Medium Neutral Citation: R v Hraichie (No. 2) [2019] NSWSC 765
Hearing dates: 21 June 2019
Date of orders: 21 June 2019
Decision date: 21 June 2019
Before: Johnson J
Decision:
An order is made that the letter from the Offender, which is Annexure A to the affidavit of Senior Assistant Superintendent Poulsen sworn 29 May 2019, is not to be published. That order operates until further order of the Court and applies throughout the Commonwealth of Australia.

Catchwords: CRIMINAL LAW - Offender pleaded guilty to serious offences against the person and terrorism offence - Offender writes letter to Court after sentencing hearing but before sentence passed - extremist content of letter - Crown application for non-publication order concerning letter - non-publication order made
Legislation Cited: Court Suppression and Non-publication Act 2010
Cases Cited: R v Dirani (No. 32) [2019] NSWSC 275
R v Dirani (No. 33) [2019] NSWSC 288
R v Hraichie (No. 1) [2019] NSWSC 319
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
Bourhan Hraichie (Offender)
Representation:
Counsel:
Ms S Callan; Ms D New (Commonwealth Crown)
Mr LJ Carr SC (State Crown)
Mr B Hraichie (Offender in person)
Solicitors:
Commonwealth Director of Public Prosecutions (Commonwealth Crown)
NSW Director of Public Prosecutions (State Crown)

File Number(s): 2016/277456 (Commonwealth); 2016/108074 (State)
Publication restriction: ---

Judgment

JOHNSON J: The Court is undertaking the resumed sentencing hearing with respect to the Offender, Bourhan Hraichie. Mr Hraichie is to be sentenced for a number of offences including serious offences against the person and a terrorism offence.
The sentencing hearing with respect to the Offender proceeded on 25 and 26 March 2019. At the conclusion of that hearing, I remanded the Offender for sentence on 26 April 2019.
On 18 April 2019, the Court was informed that the Offender had written a letter to the Court. The content of this letter was such that the legal representatives for the Offender considered that they could no longer represent him and they withdrew from the matter.
The Commonwealth Crown and the State Crown both indicated that they sought to place the Offender’s letter before the Court for the purpose of sentence and to make further submissions with respect to it on sentence. For that purpose, the Court gave further directions and listed the matter for a resumed hearing today. The Offender continues to be unrepresented.
The Commonwealth Crown and State Crown have tendered a number of documents. The affidavit of Senior Assistant Superintendent Geoffrey Poulsen sworn 29 May 2019 has been admitted as Exhibit H on sentence. Annexure A to that affidavit is the letter written by the Offender to the Court. Other parts of Mr Poulsen’s affidavit explain briefly the circumstances in which the letter came to the attention of correctional authorities on 11 April 2019 and what steps were taken thereafter with it. The affidavit touches, as well, upon aspects of the Offender’s current custodial status.
In addition, there has been tendered at the…

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 Hraichie (No. 2)

Details

AGLC: R v Hraichie (No. 2) [2019] NSWSC 765
Case: [2019] NSWSC 765
Decision Date: 21 June 2019

CaseChat Overview and Summary

The case of R v Hraichie (No. 2) involved the defendant, Hraichie, who had pleaded guilty to serious offences against the person and a terrorism offence. The matter was heard in the High Court of Australia. After the sentencing hearing but before the sentence was passed, Hraichie wrote a letter to the court containing extremist content. The Crown subsequently applied for a non-publication order concerning the content of the letter. The primary legal issue before the Court was whether the content of Hraichie's letter should be subject to a non-publication order. The Crown argued that the extremist content of the letter posed a risk to public safety and could potentially incite further criminal activity. The Court was required to consider the principles of open justice and the potential impact of publishing the letter on the public interest.

The Court found that the extremist content of Hraichie's letter posed a significant risk to public safety and the potential for inciting further criminal activity. The Court acknowledged the importance of open justice but also recognised that in certain circumstances, the need to protect the public outweighed the principle of open justice. The Court found that the content of the letter was of such a nature that it was appropriate to make a non-publication order to protect the public from the potential harm that could arise from its publication. The Court also found that the order was necessary to maintain public confidence in the criminal justice system and to prevent the glorification of criminal activity. The Court ultimately made a non-publication order concerning the content of the letter.

The Court's decision in R v Hraichie (No. 2) highlights the importance of balancing the principles of open justice with the need to protect the public from potential harm. The Court found that in certain circumstances, the need to protect the public outweighed the principle of open justice, and that a non-publication order was appropriate to prevent the potential harm that could arise from publishing the content of Hraichie's letter. The decision also reinforces the importance of considering the potential impact of publishing material on the public interest and the need to maintain public confidence in the criminal justice system. The Court's decision ultimately resulted in a non-publication order concerning the content of Hraichie's letter.

Orders