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

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”

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.
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…

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 Lalee (No 2)

Details

AGLC: R v Lalee (No 2) [2024] NSWSC 1336
Case: [2024] NSWSC 1336
Decision Date: 23 October 2024

CaseChat Overview and Summary

In the matter of R v Lalee (No 2), the respondent applied for access to the court file. Both the accused and the prosecution opposed the application, highlighting the potential prejudice to any future trial due to the untested allegations contained in the material. The court had to balance the competing interests of open justice, the role of the media in a functioning democracy, and the potential prejudice to the accused's right to a fair trial.

The legal issues before the court included the right of the media to access court files, the potential prejudice to the accused if untested allegations were made public, and the principles of open justice. The court considered whether the public interest in open justice and the media's role in a functioning democracy outweighed the potential prejudice to the accused. The court also assessed the necessity of imposing conditions on access to protect the accused's right to a fair trial.

The court found that the public interest in open justice and the media's role in a functioning democracy warranted granting the application for access. However, to mitigate the potential prejudice to the accused, the court imposed conditions on the access, ensuring that the material would not be disclosed in a way that could prejudice any future trial. The court recognised the importance of balancing the right to a fair trial with the public's right to know and the media's role in a functioning democracy.

The final orders of the court granted the media's application for access to the court file, subject to conditions. These conditions included restrictions on the publication of certain material that could prejudice any future trial and measures to protect the identity of any potential witnesses. The court's decision acknowledged the importance of open justice and the media's role in a functioning democracy, while also recognising the need to protect the accused's right to a fair trial.

Orders