R v Obeid (No 8)

[2016] NSWSC 388

Supreme Court

New South Wales

Medium Neutral Citation:	R v Obeid (No 8) [2016] NSWSC 388
Hearing dates:	7 April 2016
Date of orders:	07 April 2016
Decision date:	07 April 2016
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1) The non-publication orders made under s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of the following judgments be set aside: (A) R v Obeid (No 2) [2015] NSWSC 1380; (B) Obeid v The Queen [2015] NSWCCA 309; (C) R v Obeid (No 5) [2015] NSWSC 1967; and (D) R v Obeid (No 3) [2015] NSWSC 1441
Catchwords:	NON-PUBLICATION ORDERS – previous non-publication orders made in respect of interlocutory judgments in criminal proceedings – accused unsuccessfully sought stay of proceedings pending application for special leave to appeal – single judge High Court refused stay and made non-publication order expiring March 2016 – order expired without application to extend – accused’s trial occurred in meantime but jury was discharged before verdict – High Court’s reasons published on internet – basis for previous non-publication orders no longer remains – orders discharged – whether judgments to be placed on Caselaw.
Legislation Cited:	- Court Suppression and Non-publication Orders Act 2010 (NSW) – s 8(1)
Cases Cited:	- Matthews v R (No 2) [2013] NSWCCA 194 - Obeid v The Queen [2015] NSWCCA 309 - Obeid v The Queen [2016] HCA 9 - Obeid v The Queen [No 2] [2016] HCA 10 - R v Obeid [2015] NSWSC 897 - R v Obeid (No 2) [2015] NSWSC 1380 - R v Obeid (No 3) [2015] NSWSC 1441 - R v Obeid (No 5) [2015] NSWSC 1967
Category:	Procedural and other rulings
Parties:	Regina – Applicant Edward Moses Obeid – Respondent
Representation:	Counsel: Ms J. Chen (Sol) – Crown T. Breene (Sol) – Respondent   Solicitors: Solicitor for Public Prosecutions – Crown Breene & Breene – Respondent
File Number(s):	2015/053925
Publication restriction:	Nil but see [9].

EX TemporE Judgment

1. On 22 September 2015, I overruled a demurrer raised by the accused, Edward Moses Obeid, to the amended indictment and otherwise dismissed his application to quash the indictment or permanently stay the proceedings: R v Obeid (No 2) [2015] NSWSC 1380 (“Obeid No 2”). On 8 December 2015 the Court of Criminal Appeal granted leave to appeal that judgment, but dismissed the appeal: Obeid v The Queen [2015] NSWCCA 309. At that time Mr Obeid’s trial was fixed to commence on 10 February 2016. An earlier trial date had been vacated to facilitate Mr Obeid’s application for leave to appeal from Obeid No 2.

2. Following the dismissal of his appeal, Mr Obeid filed an application for special leave to appeal to the High Court from the Court of Criminal Appeal’s decision. On 17 December 2015 I refused an application to stay Mr Obeid’s trial pending the hearing of his application for special leave to appeal: R v Obeid (No 5) [2015] NSWSC 1967 (“Obeid No 5”).

3. Each of the judgments in Obeid No 2 and Obeid No 5 was the subject of a non-publication order made under s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW). The judgment of the Court of Criminal Appeal was also the subject of such an order, although that Court remitted to me as trial judge the question of whether that order should be continued, varied or discharged. I did not vary or discharge the order such that it continues, however I retain power to vary or discharge it. In each case the basis for the non-publication order was that which had previously been identified by Johnson J in R v Obeid [2015] NSWSC 897 at [74] to [76], namely the necessity to reduce material in the public arena of a controversial nature concerning the accused. This rationale was stated in the context of a refusal of an application for trial by judge alone on the basis that there had been a reduction in the volume of adverse publicity concerning the accused since 2013.

4. On 19 January 2016, the accused applied to Gageler J for a stay of his then impending trial until the hearing of his application for special leave to appeal. His Honour refused the application for reasons that were delivered orally on that day: Obeid v The Queen [2016] HCA 9 at [1]. Written revised reasons were published on 4 April 2016. They have been available on the High Court's website since that time. They have been the subject of some news publications and academic commentary. In Obeid v The Queen [2016] HCA 9 at [1], Gageler J explained that the publication of the written reasons had been delayed pending the expiration of a non-publication order made by his Honour on 20 January 2016. On 4 April 2016, his Honour also published Obeid v The Queen (No 2) [2016] HCA 10, which set out the reasons for the making of that publication order. The form of the order was as follows:

“1. Pursuant to s 77RE(1)(a) of the Judiciary Act 1903 (Cth), it being necessary to prevent prejudice to the proper administration of justice, until 11 March 2016, there be no publication of information tending to reveal the identity of the applicant in relation to:

(a)   the application for special leave to appeal;

(b)   the application to stay the trial proceedings; and

(c)   the application for non-publication orders.

2. On or before 11 March 2016, either party or any person listed in s 77RG(2) of the Judiciary Act have liberty to apply by summons and supporting affidavit for an order varying order 1.”

5. The rationale for the date 11 March 2016 in these orders was that his Honour “considered it appropriate to make a non-publication order substantially in the form sought by the prosecutor but to limit the duration of the order to a fixed date shortly after the trial was expected to be concluded” (at [25]).

6. At the time Gageler J’s non-publication order was made it was anticipated that Mr Obeid's trial would commence on 10 February 2016 and conclude within 2 to 4 weeks. Mr Obeid's trial commenced on 10 February 2016 but the jury was discharged on the tenth day of the trial, being 24 February 2016. A new trial has been fixed to commence on 6 June 2016.

7. Despite the fact that the trial did not conclude within the period that appears to have been contemplated at the time Gageler J's order was made no application to vary that order was made to his Honour as contemplated by order 2 noted in [4]. Hence, his Honour published the two judgments that I have referred to. The combination of the reporting of the aborted trial in February 2016 and the publication of Obeid v The Queen [2016] HCA 9 means that sufficient details of Obeid No 2, Obeid No 5 and the Court of Criminal Appeal's judgment have been published so as to remove any remaining basis for those judgments to be the subject of a non-publication order. Accordingly, I will discharge the non-publication orders that subsist in relation to those judgments and the related judgment in R v Obeid (No 3) [2015] NSWSC 1441 (“Obeid No 3”).

8. The lifting of the non-publication orders means that the judgments in Obeid No 2, Obeid No 3, Obeid No 5 and the Court of Criminal Appeal judgment will be made available to those who seek copies. However, the lifting of the orders does not necessarily mean they will be published on (“Caselaw”). The position was explained in Matthews v R (No 2) [2013] NSWCCA 194 as follows (at [3]):

“Administratively at least it is not unusual for judgments of this Court to be handed down and in that sense ‘published’, but not ‘published’ in the sense of being uploaded immediately onto Caselaw. The most common circumstance in which that occurs is when the judgment has the potential to affect outstanding criminal proceedings. By not placing the judgment immediately on the website the potential contamination of a jury pool by the wide dissemination of material adverse to an accused is minimised. However this type of (in)action does not constitute any form of non-publication order or the making of such an order under the [Court Suppression and Non-publication Orders Act 2010]. Thus in such cases there is no immediate impediment to the parties and others reproducing the judgment, including on a website, although they do so subject to the law of contempt.”

9. Nevertheless, I consider that this judgment and the judgments in Obeid No 2, Obeid No 3 and Obeid No 5 should be “published” on Caselaw but only until 17 May 2016. Consistent with the approach stated in Matthews No 2 they will then be removed, especially as Obeid No 2 canvasses factual details of the Crown case. Whether the Court of Criminal Appeal's judgment will be “published” on Caselaw will be a matter for the members of that Court to determine.

10. Accordingly, the Court orders that:

1. The non-publication orders made under s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of the following judgments be set aside:

(A) R v Obeid (No 2) [2015] NSWSC 1380;

(B) Obeid v The Queen [2015] NSWCCA 309;

(C) R v Obeid (No 5) [2015] NSWSC 1967; and

(D) R v Obeid (No 3) [2015] NSWSC 1441

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Decision last updated: 11 February 2020