R v Lalee (No 2)

[2024] NSWSC 1336

Supreme Court

New South Wales

Medium Neutral Citation:

R v Lalee (No 2) [2024] NSWSC 1336

Hearing dates:

In Chambers

Date of orders:

23 October 2024

Decision date:

23 October 2024

Jurisdiction:

Common Law - Criminal

Before:

Dhanji J

Decision:

Access granted in terms outlined in [18] of this judgment.

Catchwords:

MEDIA AND COMMUNICATIONS – bail application – media application for access to court file – application opposed by both parties – where material contains untested allegations – potential prejudice to any future trial – open justice – where proceedings took place in open court – role of the media as part of a functioning democracy – discretionary determination – access granted subject to conditions

Legislation Cited:

Criminal Procedure Act 1986 (NSW)

Cases Cited:

Edwards v R (No 1) [2022] NSWSC 1343

John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101

R v Dirani (No 33) [2019] NSWSC 288

R v Lalee [2024] NSWSC 1335

Registrar of the Supreme Court (NT) v Nationwide News Pty Ltd and Another (2018) 41 NTLR 87; [2018] NTSC 22

Stinson (a pseudonym) v Nationwide News Pty Ltd [2022] NSWCCA 235

Texts Cited:

Practice Note SC Gen 2 – Access to Court Files

Category:

Principal judgment

Parties:

Hussein Lalee (Applicant)
Rex (Respondent)

Representation:

Counsel:
G Bashir SC (Applicant)

Solicitors:
Crimcorp Defence Lawyers (Applicant)
G Nicholson, Senior Federal Prosecutor, Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2024/364510

Publication restriction:

Non-publication order made on 23 October 2024 pursuant to s 7 of the Court Suppression and Non-Publication Act 2010 (NSW) in relation to the Affidavit of Oussama Elfawal dated 18 October 2024 and Affidavit of Madina Akbari dated 18 October 2024 for a period of three months. These orders are to apply throughout the Commonwealth of Australia.

JUDGMENT

1. On 21 October 2024 I granted bail, subject to conditions, to Mr Hussein Lalee: see R v Lalee [2024] NSWSC 1335. An application has been made by Ms Shannon Tonkin of the Daily Telegraph (the media applicant), for access to the following items:

• “Crown bundle”

• “Submissions by bail applicant”

• “Bail conditions”

• “Exhibits – Defence material tendered on bail application”

2. The Crown bundle was Exhibit A on the application. The applicant’s written submissions and supplementary submissions were marked MFI 1 and MFI 2. The defence material was marked Exhibit 1. The Commonwealth Director of Public Prosecutions opposes access being granted to all documents other than the Court Attendance Notice. The applicant supports the Director’s position. Pursuant to leave granted by me the Director was given until close of business on 22 October 2024 to notify the Court as to the basis of her opposition.

3. The application was opposed on the basis that the summary of facts document contained in the Crown bundle contains extensive detail about as yet untested allegations. The Director also points to the fact that the material sought refers to a number of co-accused who have not been provided with the opportunity to express their views with respect to the present application. Finally, the Director points to the potential prejudice to any future trial or trials.

4. It can be accepted that a substantial part of the material sought is prejudicial. It can be expected that not all of the material to which access is sought will be admitted at trial. In particular, items such as the applicant’s criminal history would not be expected to be admitted at trial. Should separate trials be ordered, depending upon how the division is made, it might be expected that large parts of the statement of facts will not be available in particular trials.

5. The determination of applications such as the present is not governed by any particular legislative provision. In particular, I note that s 314 of the Criminal Procedure Act 1986 (NSW), whilst headed “Media access to court documents” does not apply to the present situation: see R v Dirani (No 33) [2019] NSWSC 288 at [44].

6. The Practice Note SC Gen 2 – Access to Court Files deals with applications such as the present. It is, of course, a Practice Note and does not provide any rules of law. The determination is, consequently, discretionary: see Stinson (a pseudonym) v Nationwide News Pty Ltd [2022] NSWCCA 235 at [31]. The discretion is to be exercised having regard to relevant considerations.

7. In exercising the discretion to grant access to the items sought it is, firstly, appropriate that the principle of open justice be acknowledged. It has been described as a fundamental axiom of the Australian legal system. It is appropriate that regard be had to the principle when determining applications for access to exhibits: see R v Dirani (No 33) and John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101.

8. The media is an important part of a functioning democracy. As part of that important role, the media, in reporting on court proceedings, promotes public confidence in the administration of justice. That confidence is an aspect of the wellbeing of our community more generally.

9. The principle of open justice is recognised in the manner in which courts generally operate, that is, with doors open, including, within the expression “doors”, the modern development of internet links enabling media outlets to view proceedings. But as has also been said, “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”: see Registrar of the Supreme Court (NT) v Nationwide News Pty Ltd & Anor (2018) 41 NTLR 87; [2018] NTSC 22 at [21].

10. Nevertheless, in Stinson (a pseudonym) v Nationwide News Pty Ltd, Button J (with the agreement of Macfarlan JA and Wilson J) said with respect to an application for access to documents on a court file (at [33]-[34]):

“… as I understand it all of the documents on the file were either tendered in open court or reflect what happened in open court. That in itself is a powerful reason for permitting the media respondents to have access to them.

It follows that I would impose no restriction on the second or third respondents having access to the file, and by that term I include any file of any court relating to the current criminal proceedings against the applicant.”

11. The reasoning is generally persuasive but some restrictions to access should be made. I would also add that providing access to a court file in no way provides any indication as to what it is appropriate to report. Any journalist granted access to material remains of course bound by any order prohibiting publication, together with their own ethical obligations.

12. With respect to the statement of facts, those parts ruled by me at the hearing of the application for bail to be inadmissible, should be removed. They should not, in accordance with my ruling, have been part of the tender in the first place and should as a result not be part of any access. (I do not intend any criticism by this, but merely base my observation on the outcome of my ruling.)

13. The various co-accused should be referred to by pseudonyms given that they were not party to the proceedings and serious allegations have been made against them.

14. Personal information in relation to the medical or psychological condition of members of Mr Lalee’s family should not be provided: see, for example, Edwards v R (No 1) [2022] NSWSC 1343. In the present case, I regard the privacy concerns of the individuals involved to outweigh the need to ensure open justice. This is particularly so having regard to fact that my decision can be understood without recourse to the details of the medical conditions suffered.

15. Exhibits 2 and 3 are subject to a non-publication order of limited duration. Access should be granted to those exhibits noting publication is restricted until the expiry of that order.

16. Finally, access should be granted subject to the condition that the applicant can report on the material contained in the documents but cannot reproduce it, nor any feature of it, including photographs or personal identifying information, such as handwritten signatures, letters, residential addresses, phone numbers, or bank account details.

17. Any access will be delayed for 72 hours from the delivery of this judgment in accordance with the Director’s request. This will allow the parties to consider their respective positions and to prepare a bundle reflecting my orders.

Orders

18. Access is granted to the media applicant to the following documents forming part of the Court file in this matter:

1. Exhibit A in the proceedings, that being the Crown bundle, subject to the following:

1. Any residential address or telephone number is to be redacted;

2. Access is not granted to those parts of the evidence ruled inadmissible on the application for bail: pars (101)-(163), (302)-(313), (329)-(346) (at pp 124-126); (328)-(354) (at pp 127-137) and (370)-(375) of the annexure to the Statement of Facts, which are to be removed or redacted; [1]

   1. Page numbers have been provided for clarity where the Crown bundle (Exhibit A) repeats certain paragraph numbers.

3. The names of any co-accused or relatives of the co-accused in the Court Attendance Notice or the facts are to be replaced with pseudonyms;

4. Access to paragraph (298) is not granted and is to be redacted.

2. Exhibit 1 in the proceedings, that being the applicant’s bundle, subject to the following:

1. any residential address or telephone number is to be redacted;

2. with respect to the affidavit of Madina Akbari of 26 September 2024, access is refused to:

1. Annexures A, B, C and D;

2. paragraphs (19)-(27) and

3. paragraphs (29)-(38).

3. Exhibits 2 and 3 in the proceedings subject to the following:

1. There is to be no report made of the content of these exhibits during the currency of the non-publication order which applies to them.

4. MFI 2 in the proceedings, that being applicant’s submissions dated 10 October 2024;

5. MFI 3 in the proceedings, that being applicant’s submissions dated 17 October 2024, with the exception of that part commencing with the second sentence of paragraph (17) and concluding at the end of paragraph (18).

6. The above access is granted on condition that the applicant can report on the material contained in the documents but cannot reproduce it, nor any feature of it, including photographs or personal identifying information, such as handwritten signatures, letters, residential addresses, phone numbers, or bank account details.

7. Access as granted above is not to take place within 72 hours of the making of these orders.

8. The Commonwealth Director of Public Prosecutions is to provide a version of Exhibit A reflecting the above orders within 72 hours of the making of these orders;

9. The applicant is to provide versions of Exhibit 1, MFI 2 and MFI 3 reflecting the above orders within 72 hours of the making of these orders unless agreement is reached with the Commonwealth Director of Public Prosecutions for the Director to provide these documents.

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Endnote

Decision last updated: 28 October 2024