R v Ibrahim Elomar; R v Mamdouh Elomar; R v Jousif

[2017] NSWSC 1860

Supreme Court

New South Wales

Medium Neutral Citation:

R v Ibrahim Elomar; R v Mamdouh Elomar; R v Jousif [2017] NSWSC 1860

Hearing dates:

5 September 2017

Decision date:

05 September 2017

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

Pursuant to section 7(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the Court orders that:

1.    Until further order, there be no disclosure, by publication or otherwise, of any material containing any reference to:

1.1   Radius Christanto (“Christanto”) pleading guilty, or any statement of any intention to plead guilty, to a charge of conspiring to bribe foreign public officials;

1.2   The plea hearing in respect of Christanto on 30 September 2013 in the Supreme Court of Victoria; and

1.3   The sentence handed down on Christanto.

1.4   The sentencing remarks in relation to that sentencing of Christanto.

2.    Until further order, there be no disclosure, by publication or otherwise, of any material containing any reference to:

2.1   Securency International Pty Ltd (“Securency”) and Note Printing Australia Limited (“NPA”) pleading guilty, or any statement of an intention to plead guilty, to charges of conspiring to bribe foreign public officials;

2.2   The plea hearing on 5 December 2011 in the Supreme Court of Victoria in respect of Securency and NPA;

2.3   The sentences handed down on 17 July on Securency and NPA; and

2.4   The sentencing remarks in relation to that sentencing of Securency and NPA.

3.    Orders 1 and 2 do not prevent disclosure of the sentencing remarks referred to in Orders 1.3 and 2.3 to and between the following people until the final determination of these proceedings and for the sole purposes of these proceedings:

3.1   The legal representatives of the defendants instructed in this proceedings; and

3.2   The Commonwealth Director of Public Prosecutions and legal representatives of the Director instructed in this proceedings.

4.    I note the undertaking by the Crown to inform me when associated proceedings in the Victorian Supreme Court have been finally determined.

Catchwords:

PRACTICE AND PROCEDURE – non-publication order made with exception to permit offenders’ counsel to have access to two decisions of the Victorian Supreme Court for the purposes of the sentence hearing

Legislation Cited:

Court Suppression and Non‑Publication Orders Act 2010 (NSW), ss 7, 8, 12

Category:

Procedural and other rulings

Parties:

Regina
Ibrahim Elomar (Offender)
Mamdouh Elomar (Offender)
John Jousif (Offender)

Representation:

Counsel:
D Staehli SC (Crown)
G Scragg (John Jousif)
A Djemal (Mamdouh Elomar)
G James QC (Ibrahim Elomar)

Solicitors:
Commonwealth Director of Public Prosecutors (Crown)
Birchgrove Legal (Offender John Jousif)
Lawyers Corp Pty Ltd (Offender Ibrahim Elomar and Mamdouh Elomar)

File Number(s):

2015/52844; 2015/63877; 2015/63885

Judgment: EX TEMPORE

1. The Crown has applied for orders under the Court Suppression and Non‑Publication Orders Act 2010 (NSW) (the Act) in respect of two decisions of the Victorian Supreme Court. The grounds of the application are set out in the affidavit of Jimmy Ishak sworn 5 September 2017 to which the relevant documents are annexed. I am satisfied on the basis of that affidavit that it is necessary to make non‑publication orders.

2. The Crown has provided short minutes of order which set out what is sought. I am satisfied that the orders set out are in an appropriate form. I note that I am required by s 8(2) of the Act to specify the grounds for making such an order. I am satisfied that the order is necessary to prevent prejudice to the proper administration of justice within the meaning of s 8(1)(a) of the Act because the material in respect of which the order is sought has the potential to affect proceedings which are still continuing. I also rely on the ground in s 8(1)(e), namely that it is otherwise necessary in the public interest for the order to be made and that the public interest significantly outweighs the public interest in open justice. In the present case, the relevant public interest for the purposes of s 8(1)(e) is the interest that the offenders' counsel and legal representatives in these proceedings may be assisted by material in the Victorian decisions and that they ought not, in my view, be deprived of access to those decisions. The offence to which the offenders have pleaded guilty is rarely prosecuted. Accordingly remarks on sentence for those who have committed that offence, or a similar offence, are accordingly relatively rare.

3. I am required by s 12 of the Act to specify the duration of the order. Section 12(2) of the Act obliges me to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

4. Mr Crown has instructions to undertake on behalf of the Crown that the Crown will inform me when the Victorian proceedings, which are of concern, have been finally determined. I consider this undertaking to be sufficient to make it appropriate for the orders sought to be made “until further order”. When the undertaking is fulfilled, I will be in a position revisit these orders and, if necessary, dissolve them.

5. I make orders in terms of the short minutes of order which I date and initial and place with the papers. I will also note and record on the short minutes of order the undertaking by the Crown to inform me when associated proceedings in the Victorian Supreme Court have been finally determined.

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Decision last updated: 20 October 2020