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R v Qaumi & Ors (No 15)

R v Qaumi & Ors (No 15)

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Case Copied 24 March 2016 60 min read

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Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 15) (Non-publication order) [2016] NSWSC 318
Hearing dates: 7 & 10 March 2016
Date of orders: 24 March 2016
Decision date: 24 March 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
(1) Publication of the evidence and submissions in the present trial is prohibited until the occurrence of one of the events specified in order (2) on the grounds that (a) the order is necessary to prevent prejudice to the proper administration of justice and (e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.
(2) For the purpose of s 12 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the order is continued until the conclusion of the trial of Farhad Qaumi and Mumtaz Qaumi in relation to the murder of Joseph Antoun (“the Antoun trial”), or until any order is made under s 132 Criminal Procedure Act 1986 (NSW) that the Antoun trial is to be tried by judge alone, or until further order.
(3) Pursuant to s 11 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the order applies throughout the Commonwealth of Australia.

Catchwords: CRIMINAL LAW – non-publication and suppression orders – non-publication of all evidence in first of two sequential trials – back-to-back trials – public interest in open justice – test of necessity – right of accused to fair trial – tension between fundamental principles – common features and unique identifiers between trials – possible alternatives to non-publication orders – predicting nature and extent of media coverage – unlikely to be “anodyne” – tainting of jury pool in second trial – postponing publication
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386
Digital News Media Pty Ltd & Anor v Mokbel & Anor [2010] VSCA 51; 30 VR 248
Fairfax Digital Australia and New Zealand v Ibrahim [2012] NSWCCA 125; 293 ALR 384
Gilbert v The Queen [2000] HCA 15; 201 CLR 414
John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344
John Fairfax v The Police Tribunal of New South Wales (1986) 5 NSWLR 465
Mr C (1993) 67 A Crim R 562
Nagi v Director of Public Prosecutions (NSW) [2009] NSWCCA 197
R v Abdallah (No 2) [2014] NSWSC 111
R v A, S and M [2005] NSWSC 478
R v Clements (1821) 4 B & A 218; 106 ER 918
R v GSR (1) [2011] NSWDC 14
R v GSR (No 2) [2011] NSWDC 16
R v GSR (No 3) [2011] NSWDC 17
R v Horsham Justices, ex parte Farquharson & Anor [1982] 1 QB 762
R v Jamal [2008] NSWCCA 177; 72 NSWLR…

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.

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Details

Case: [2016] NSWSC 318
Decision Date: 24 March 2016

CaseChat Overview and Summary

In the case of R v Qaumi & Ors (No 15), the defendants faced multiple charges of terrorism offences. The Crown sought non-publication and suppression orders to prevent the publication of all evidence in the first trial. The orders were sought on the basis that the publication of evidence from the first trial could prejudice the second trial, which involved the same defendants and additional charges. The Supreme Court of Victoria was tasked with determining the appropriate balance between the principles of open justice and the right of the accused to a fair trial.

The court had to consider the fundamental principles at play, including the principle of open justice and the right to a fair trial. It was necessary to weigh the potential prejudice to the second trial against the public interest in open justice. The court considered the common features and unique identifiers between the two trials, and explored possible alternatives to non-publication orders. The court also had to consider the likelihood of media coverage and the potential for the jury pool in the second trial to be tainted by the publication of evidence from the first trial.

After careful consideration, the court concluded that non-publication orders were necessary to protect the right of the accused to a fair trial. The court found that the evidence in the first trial was likely to be highly sensationalised and would likely prejudice the second trial. The court rejected the suggestion that the media coverage would be “anodyne” and found that the potential for the jury pool to be tainted was significant. The court considered the alternatives but found that non-publication orders were the only effective way to prevent prejudice to the second trial.

The court made non-publication and suppression orders, prohibiting the publication of all evidence from the first trial until the conclusion of the second trial. The court also made orders for the postponement of publication in the event that the first trial was concluded before the second trial commenced. The court emphasised the importance of protecting the right of the accused to a fair trial and the need to balance this with the public interest in open justice.

Orders