R v Qaumi & Ors (No 15)

[2016] NSWSC 318

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 258 R v MAK; R v MSK [2005] NSWCCA 98 R v MAK; R v MSK; R v MMK [2005] NSWCCA 369 R v MSK and MAK [2004] NSWCCA 308; 61 NSWLR 204 R v McNeil [2015] NSWSC 357 R v NK (No 3) [2015] NSWSC 1257 R v Qaumi & Ors (AVL) [2015] NSWSC 1711 R v Qaumi & Ors (No 3) (severance and separate trials) [2016] NSWSC 15 R v Qaumi & Ors (No 8) (Variation of non-publication orders) [2016] NSWSC 184 R v Qaumi & Ors (No 9) (Court Closure) [2016] NSWSC 171 R v Qaumi & Ors (No 10) [2016] NSWSC 252 R v Qaumi & Ors (No 14) (Judge Alone) [2016] NSWSC 274 Reinhart v Welker [2011] NSWCA 403 Scott v Scott [1913] AC 417 The Queen v Glennon (1992) 173 CLR 592
Texts Cited:	Roxanne Burd and Jacqueline Horan, “Protecting the right to a fair trial in the 21st century – has try by jury been caught in the world wide web? (2012) 36 Criminal Law Journal 103
Category:	Procedural and other rulings
Parties:	Nationwide News, Fairfax and the Australian Broadcasting Corporation (Intervenors) Regina Farhad Qaumi (the Applicant) Mumtaz Qaumi (the Applicant) Jamil Qaumi Mohammed Zarshoy Mohammed Kalal
Representation:	Counsel: M Lewis (Intervenors) K McKay & P Hogan (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami) N Carroll(J Quami) R Driels (Zarshoy) L McSpedden (Kalal)   Solicitors: In-house counsel for media organisations (Intervenors) Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten& Co (M Quami) Bannisters Lawyers (J Quami) Zahr Lawyers (Zarshoy) Hallak Law (Kalal)
File Number(s):	Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260Jamil Quami - 2013/336086; 2014/18164; 2014315253Mohammad Zarshoy – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939
Publication restriction:	No publication until the conclusion of both trials.

Judgment

1. In John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344, the New South Wales Court of Appeal quashed the decision of a District Court Judge who had ordered that there be no publication of the verdict in a case where the accused faced back-to-back trials and the second trial was to commence shortly after a jury had found him guilty of other similar offences. Spigelman CJ, with whom Handley JA and Campbell AJA agreed, discussed the tension and interplay between two fundamental principles guiding the administration of justice in a democratic society. Those principles concern the public interest in open justice and the principle that a citizen accused by the state of committing serious crimes is entitled to a fair trial free of prejudice. The Chief Justice said at [17]:

“As often happens in a context involving fundamental principle, two such principles are in conflict and a judgment must be made as to which principle is to prevail in the circumstances. The principle of open justice and the principle of a fair trial each inform and energise many areas of the law, as I have sought to show in extra-judicial addresses. (See, Spigelman, ‘Seen to be Done: The Principle of Open Justice’ (2000) 74 ALJ 290, 378 and Spigelman, ‘The Truth Can Cost Too Much: The Principle of a Fair Trial’ (2004) 78 ALJ 29.)”

2. His Honour went on to describe at [18]-[23] the two fundamental principles. His Honour said at [18]:

“It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial, is an essential quality of an Australian    court of justice.”

3. His Honour noted that “it is also well established that the exceptions to the principle of open justice are few and strictly defined.” His Honour then described the principle of a fair trial and emphasised at [22]-[23] that the High Court has characterised it in “the most forceful terms”:

“22. It has been described as ‘the central thesis of the administration of criminal justice’: McKinney v The Queen (1991) 171 CLR 468 at 478; as ‘the central prescript of our criminal law’: Jago at 56; as a ‘fundamental element’ or a ‘fundamental prescript’: Dietrich v The Queen (1992) 177 CLR 292 at 299, 326; and as an ‘overriding requirement’: Dietrich at 330. It is not a new principle. As Isaacs J put it in 1923 with reference to ‘the elementary right of every accused person to a fair and impartial trial’: ‘Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle’: R v MacFarlane; Ex parte O’Flanaghan & O’Kelly (1932) 32 CLR 518 at 541-542.

23. There is no aspect of preparation for trial or of criminal procedure which is not touched by, or indeed determined by, the principle of a fair trial. As Lord Devlin once put it: ‘… [N]early the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their power to see that what was fair and just was done between prosecutors and accuseds.” Connelly v Director of Public Prosecutions [1964] AC 1254 at 1347.”

4. In the present case the interaction and conflict between these two core principles is as stark as one could imagine. Unlike the situation described by Lord Devlin, this is not a contest between the prosecutor and the accused. The parties to the trial present a strong and united position. However, an equally forceful position has been put by a group of the some of the great players in the Australian media. While the prosecutor and the accused advocate by reference to the principle of a fair trial, the great media interests advance their case by reference to the fundamental requirement of open justice and the desirability that criminal cases are subject to full and fair reporting.

5. The question for the Court involves a consideration, in the light of the relevant law including the statutory embodiment of the principle of open justice in s 6 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (Court Suppression Act), of which principle should prevail and, if there is to be any restriction on the principle of open justice, what steps can be taken to ensure that those restrictions are as small as possible.

6. The question is not one that is easy to resolve and I have deliberated and contemplated anxiously for some days before arriving at a decision.

7. The dilemma arises in circumstances where two of the accused in a trial which is soon to commence (“the present trial”), seek orders pursuant to s 7 of the Court Suppression Act that there be a prohibition on publication of the evidence given in relation to the present trial for a nominated period. The basis upon which the application is made is that the two accused men are to face a separate trial scheduled to commence at the conclusion of the present trial and that publication of the evidence in the present trial would undermine their right to a fair trial in the subsequent proceedings because it would be impossible to secure a jury which was not influenced by the media publicity surrounding the present trial. In terms of the grounds provided for in s 8 of the Court Suppression Act, the accused submit that “the order is necessary to prevent prejudice to the proper administration of justice” and/or that “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.”

8. The Director of Public Prosecutions supports the application.

9. The media organisations submit that there are other means by which the fair trial of the two accused men could be secured and that, accordingly, it is not “necessary” (to adopt the words of both the common law and the statute) to make an order prohibiting publication of the whole of the evidence in the trial.

10. The present judgment is one of a series of judgments that I have delivered in the course of a series of pre-trial hearings that commenced in November 2015 and which will conclude with the commencement of the trial on 4 April 2016. This judgment must be read in conjunction with other judgments that have touched upon the same principles and the same questions concerning the interaction of the criminal justice system, the protection of witnesses, the rights of the accused and the principle of open justice. In particular, the reader should be aware of judgments in which I have been called upon to make orders protecting the safely of informant witnesses (R v Qaumi & Ors (AVL) [2015] NSWSC 1711), orders that the accused be tried by judge alone (R v Qaumi & Ors (No 14) (Judge Alone) [2016] NSWSC 274), orders that certain organisations “take down” 25 articles published on the internet (R v Qaumi & Ors (No 16) (Take Down Orders) [2016] NSWSC 319) and an application by the Police Commissioner that the court be closed during the course of the evidence of some twelve witnesses (R v Qaumi & Ors (No 9) (Court Closure) [2016] NSWSC 171).

11. The reader – upon consideration of those other judgments and apprised of the various applications and conflicting and contradictory principles – will more readily appreciate and understand both the difficulty of the decision that I am here called upon to make and the reasons that I have reached the decision that I have. Further, the reader will understand better the nature of the case confronting the accused by referring to the analysis of the facts and evidence undertaken in a judgment determining an application for severance of counts and separation of trials: R v Qaumi & Ors (No 3) (Severance and Separate Trials) [2016] NSWSC 15.

12. Having considered all alternatives, I have reached the conclusion that orders restricting (by effectively postponing) the publication of the evidence and submissions in the present trial are necessary to ensure the fair trial of the accused and also to ensure that justice is not denied (by being unnecessarily delayed) to the accused, the witnesses and, perhaps most importantly, to the secondary victims of the murder that is the subject of the second trial to be held in this Court.

The criminal proceedings

13. The background to the proceedings, and a more detailed summary of the facts and evidence, can be gleaned from my judgment in R v Qaumi & Ors (No 3). When the matter first came before me in July 2015 there were nine accused facing 36 counts. Within most of those counts, several accused stood charged. Since that time, four of the accused have ceased to be parties to the proceedings. First, the accused (Nazir Akbari) entered pleas of guilty to certain charges and his case is to be (or has been) dealt with in the District Court. Then, on 3 February 2016, I made orders severing counts 1 to 10 and counts 30 and 31 from the original indictment. The result was that two further accused (John Bishop and Mohammed Nasiri) were remitted to the District Court for their criminal proceedings to be conducted in that Court. Most recently, on 3 March 2016, an accused (now known as witness M) entered pleas of guilty before me and indicated a willingness to give evidence against the remaining five accused. She is to be sentenced in the last week of March 2016.

14. The first of the two back-to-back trials is due to commence on 4 April 2016. The present trial involves five accused charged with 24 offences. Those offences encompass five separate but related shooting incidents. The prosecution case is that those five incidents arose out of a “turf war” between two rival criminal groups known as the Brothers for Life Blacktown (including the current five accused men) and the Brothers for Life Bankstown (the targets of the five shootings). The first shooting incident (the Hamzy shooting) occurred on 29 October 2013 and resulted in the accused being charged with the murder of Mahmoud Hamzy, the conspiracy to murder Mohammed Hamzy and the infliction of grievous bodily harm on Omar Ojaj (by shooting him) with intent. [1] The next incident (the Odisho shooting) took place on 3 November 2013 and resulted in three of the accused being charged with solicit to murder Michael Odisho and shooting with intent to murder Michael Odisho. [2] The third incident (the Zakaria shooting) occurred on 4 November 2013 and gives rise to charges against the accused (or some of them) of soliciting to murder and wound with intent to murder. [3] The fourth shooting (the Chokolatta Café shooting) on 7 November gives rise to the accused being charged with soliciting to murder Abdul Abu-Mahmoud and shooting at Abdul Abu-Mahmoud with intent to murder him. There were two other named victims to that shooting. [4] Finally on 29 November 2013 there was a shooting at Bankstown resulting in charges of shoot with intent to murder Anthony Elkadi. [5]

    1. Counts 1-3.

    2. Counts 4-6.

    3. Counts 7-9.

    4. Counts 10-16.    

    5. Counts 18.

15. The present applicants for non-publication orders (that is, Farhad Qaumi and Mumtaz Qaumi) stand charged with each of the offences to which I have just referred. In addition, those two accused are also charged in the present trial with a number of other offences including possession of firearms, the commercial supply of drugs and participating in a criminal group known as the Brothers for Life at Blacktown. According to the prosecution case, the two accused were the leaders of that criminal organisation.

16. The evidence that the Crown expects to adduce in the course of the current trial includes the evidence of some 12 or 13 informant witnesses, a number of whom have given evidence in the course of the pre-trial hearings. Their evidence will provide a narrative describing a period of significant violence and lawlessness orchestrated by Farhad Qaumi and, to a somewhat lesser degree, his brother Mumtaz Qaumi. There will be evidence of the killing of one man and the wounding of a number of others including an innocent young girl who received a large number of wounds when a shotgun was discharged in the course of the Zakaria shooting.

17. The Crown will also lead a body of forensic and medical evidence in order to establish the fact of the killing of Mr Hamzy and the wounding of around 8 other persons. That evidence will be of a graphic and distressing nature. There will be other evidence upon which the Crown will rely in support of the informant witnesses including a body of evidence said to establish that Farhad Qaumi employed violence and intimidation to ensure that the members of the group obeyed his orders.

18. The parties have indicated that they anticipate that the present trial will take something in the order of 4 months, although one counsel suggested it may last for as long as 6 months “including the jury’s deliberations”.

19. As part of my judgment on severance of the counts, I ordered that the second trial of Farhad and Mumtaz Qaumi is to proceed after the conclusion of the first trial. In that second trial, the Crown will allege that each of them is guilty of the murder of a man named Joseph Antoun. This was count 30 on the original indictment. However, I ordered the count should be severed from the indictment because it would be impossible for the accused to receive a fair trial if evidence in relation to all of these matters was received by the same jury. I took the view that it would be impossible to fashion directions to a jury that would overcome the prejudice inherent in a trial in which those two accused faced not only the Antoun murder charge but also the series of charges said (by the Crown) to have arisen in the course of the turf war between the Bankstown and Blacktown chapters of the Brothers for Life.

20. It is the accused’s case on the current application that if the current proceedings are subject to extensive media coverage, it will be impossible to summon a jury pool that is not affected or influenced by the knowledge of these earlier incidents. They submit that the media coverage that can be anticipated during the present trial will render otiose the orders for severance and separation of the trials.

The evidence and earlier media coverage

21. The applicants read an affidavit of Mumtaz Qaumi’s solicitor (Ms Sten) dated 2 March 2016 [6] as well as affidavits filed in support of an application for a trial by judge alone. This included an affidavit of the solicitor for Farhad Qaumi (Ms Gittani) dated 15 January 2016 [7] including annexures (A to I) comprising internet searches and material published at around the time of the shooting incidents and the arrests of the accused as well as more recent media coverage surrounding the sentencing of an offender known as Witness L in early September 2015. The material also included an affidavit of Ms Sten dated 28 January 2016 [8] annexing (A to L) a number of searches and publications obtained by the solicitor on a search of the internet.

    6. Part of MFI 75.

    7. Part of MFI 42.

    8. Part of MFI 45.

22. The accused also tendered a newspaper article from the Sunday Telegraph dated Sunday March 6, 2016 entitled “Razor Blade Justice” and an editorial in the same paper which was related to the front-page item to which I have just referred. [9]

    9. That document was tendered but erroneously marked for identification (rather than exhibited) as MFI 84. Although it is an MFI (not an exhibit), there is no question that it forms part of the evidence on the present application.

21. That was the evidence on the present application. The Intervenors did not adduce any evidence on this application.

22. In the limited time available to prepare this judgment, I am unable to summarise individually the newspaper and other media items annexed to the affidavits. In the course of my judgment on the application for judge alone trial, I provided an overview of the material: see R v Qaumi & Ors (No 14) (Judge Alone) at [50]-[68]. On one view, the previous newspaper articles and material located on the internet does little to establish, prospectively, the kind of prejudice that the accused men seek to establish in order to enliven the restrictive jurisdiction in ss 7 to 8 of the Court Suppression Act. However, I accept that the body of material that has been tendered on this application allows me to draw an inference both as to the nature and the extent of the media coverage that this trial is likely to attract: cf Mr C (1993) 67 A Crim R 562 at 565. I accept that the coverage is likely to be prominent, dramatic and sustained throughout the period of the trial. I further accept that the coverage is likely to be published in both the electronic and print media and that items published on the television, radio and newspapers will also readily be available on the internet. The Court is entitled to assume that the coverage will not be buried in the back pages of the newspaper if the front page Sunday Telegraph article “Razor Blade Justice” (MFI 84) is anything to go by. That article was published after I varied non-publication order over an incident that occurred in the courtroom to enable the article’s publication. In argument, it was submitted that the article would be “anodyne”. It was hardly that.

23. I am comfortably satisfied that, in the absence of some form of restriction on the publication, a large sector of the public will become aware of the fact that Farhad and Mumtaz Qaumi are alleged to have been the leaders of the group known as the Brothers for Life at Blacktown and directed the activities of that organisation and that those activities included criminality of the highest order. The public would be made aware that the criminality included a number of shooting incidents in which one man was killed and a number of others seriously wounded or injured. Included would be the allegation that an innocent child was injured when a shot gun was discharged in her home.

24. There is little doubt that if a jury trying the Antoun murder case was aware of some or all of this material, it would be inimical to the accused’s right to a fair trial. It would make the orders severing the counts otiose and it would not be possible (as I made clear in my judgment on severance) to direct the jury in such a way as to overcome the prejudice.

The reluctance of the courts to interfere with the media’s right to report on court cases

27. The law cherishes the principle of open justice and is strongly resistant to interference with the right and duty of the media to report what happens inside of our courts. The courts, particularly the superior courts, are armed with a number of weapons to combat the possibility that media coverage will prejudice the rights of accused persons to receive a fair trial. However, whether those powers are being exercised as a consequence of a superior court’s inherent power or as a result of the powers provided the Court Suppression Act, the authorities establish that a judge should be extremely hesitant before making orders that interfere with the important functions of the media. Before any order is made that interferes with the right to report court cases full and fairly, an applicant for such an order must establish that such an order is “necessary”. This has always been the approach taken by the common law: see, for example, John Fairfax Publications v District Court of NSW and John Fairfax v The Police Tribunal of New South Wales (1986) 5 NSWLR 465. In Nagi v Director of Public Prosecutions (NSW) [2009] NSWCCA 197 Basten JA (with whom Hulme and Johnson JJ agreed) said:

“31. Thus, that which is ‘necessary’ to achieve the due administration of justice is that which would prevent it being frustrated. To say that the order must be ‘really necessary’ is to emphasise the burden borne by the applicant for the order, rather than to create some different test.

32. Although reference was made in the course of submissions to various public interests sought to be protected by legislation, none was identified which directly involved any legislative modification of the open justice rule. Accordingly, the question must remain whether the order sought by the applicant was indeed necessary to secure the proper administration of justice in the proceedings before the District Court.”

28. In John Fairfax v The Police Tribunal of New South Wales, McHugh JA (Glass JA agreeing) said at 476-477:

“The power to make orders binding outside the courtroom:

The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more than is “necessary to enable it to act effectively within” its jurisdiction. Courts have no general authority, however, to make orders binding people in their conduct outside the courtroom. Judicial power is concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in proceedings before the courts. An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative — not judicial-power. Nevertheless, conduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court. But the conduct will be a contempt because the person involved has intentionally interfered with the proper administration of justice and not because he was bound by the order itself. I think that the above statement of the applicable principles is in accordance with the way in which this branch of the law has developed.”

29. In Scott v Scott [1913] AC 417 the House of Lords made enduring observations about these matters. The Lord Chancellor said (at 435-440):

“Whatever may have been the power of the Ecclesiastical Courts, the power of an ordinary Court of justice to hear in private cannot rest merely on the discretion of the judge or on his individual view that it is desirable for the sake of public decency or morality that the hearing should take place in private. If there is any exception to the broad principle which requires the administration of justice to take place in open Court, that exception must be based on the application of some other and overriding principle which defines the field of exception and does not leave its limits to the individual discretion of the judge.

…

In order to make my meaning distinct, I will put the proposition in another form. While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic. The other case referred to, that of litigation as to a secret process, where the effect of publicity would be to destroy the subject-matter, illustrates a class which stands on a different footing. There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.

I think that if the principle in cases of secret process be what I have stated, it affords guidance in other cases. In Rex v. Clement, where under special circumstances it was held that daily publication of the evidence in a particular criminal trial in defiance of the judge had impeded justice, and was, therefore, an offence against it, we have a different illustration of a rule which may have manifold application, and may cover cases of the class before us in this appeal. But unless it be strictly necessary for the attainment of justice, there can be no power in the Court to hear in camera either a matrimonial cause or any other where there is contest between parties. He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure. But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. He may be able to shew that the evidence can be effectively brought before the Court in no other fashion. He may even be able to establish that subsequent publication must be prohibited for a time or altogether. But this further conclusion he will find more difficult in a matrimonial case than in the case of the secret process, where the objection to publication is not confined to the mere difficulty of giving testimony in open Court. In either case he must satisfy the Court that by nothing short of the exclusion of the public can justice be done. The mere consideration that the evidence is of an unsavoury character is not enough, any more than it would be in a criminal Court, and still less is it enough that the parties agree in being reluctant to have their case tried with open doors.

…

In my opinion there was no valid reason for hearing the case in camera and the order was made in reality for the benefit of the parties who concurred in asking for it, and was therefore made under a mistaken impression as to the law. And if that be the substance of the matter it disposes of the appeal. The order was wrong, and it could not effect the abrogation of the prima facie right, excluded only in exceptional cases such as I have already spoken of, which the parties and the public possess to make known what takes place at the hearing and to discuss it.

Even if the order had been validly made by reason of the consent of the parties, it could have provided nothing more than an instrument for enforcing an agreement come to as to the mode in which the hearing should take place. A breach of the order would, therefore, have in substance been punishable only on the same footing as a breach of an ordinary order in a civil case for an injunction; and a punitive order made with reference to the breach falls, in such cases, outside the language of s. 47 of the Judicature Act of 1873, which provides that no appeal shall lie from a judgment of the High Court in any criminal cause or matter. If the principle which governs the jurisdiction of the Divorce Court to hear in camera is that which I have sought to explain, this conclusion is the only one which is consistent with the section and the decisions which interpret it.”

30. As I observed in two of my earlier judgments, the principle of open justice is central to the existence of a functioning democratic society: see R v Qaumi & Ors (No 8) (Variation of non-publication orders) [2016] NSWSC 184 at [22]-[26] and R v Qaumi & Ors (No 9) (Court Closure) [2016] at [19]-[23].

31. The Court Suppression Act reflects the common law’s insistence on the principle of open justice and incorporates the test of necessity. It does this in two clear and distinct ways. First, s 6 is entitled “safeguarding public interest in open justice” and is in the following unambiguous terms:

“In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.”

32. It also achieves its purpose by the terms of s 8 which provide the grounds upon which the powers vested in the court by the Court Suppression Act might be exercised. In each case the powers cannot be exercised unless it is necessary to achieve a number of clearly identified objectives. Section 8 provides:

“(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(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) A suppression order or non-publication order must specify the ground or grounds on which the order is made.”

33. Since the introduction of those provisions, the higher courts have emphasised that the test of necessity must not be in any way diluted or misunderstood. The meaning of “necessary” in the Court Suppression Act has been considered in a number of cases: see, for example, Reinhart v Welker [2011] NSWCA 403 at [27]-[31] (Bathurst CJ and McColl JA) and Fairfax Digital Australia and New Zealand v Ibrahim [2012] NSWCCA 125; 293 ALR 384 at [8]–[9] (Bathurst CJ) and [45]-[51] (Basten JA).

34. The Chief Justice and McColl JA said in Reinhart v Welker:

“Significantly, an order is not ‘necessary’ if it appears to the court ‘to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics’: Hogan v Australian Crime Commission(at [31]).”

35. That passage is an important one and clearly distinguishes between a finding that an order is “convenient, reasonable or sensible” from a finding that an order is necessary. Further, it makes it clear, as was stressed by counsel for the Intervenors, that the decision to order non-publication or suppression of material is not to be undertaken by engaging in some form of balancing exercise in which the various interests are placed on either side of the scales. Rather, it is a matter of considering all of the evidence and interests and determining whether it is truly “necessary” to make the orders sought or some variation of those orders.

36. While it is self-evident, it cannot be stressed enough that this is an exceptionally high test.

37. In Fairfax Digital Australia and New Zealand v Ibrahim, Basten JA stressed that consideration must be given to the nature of the order under contemplation and the extent to which such an order interferes with the public interest in open justice. His Honour said at [51]:

“It is therefore desirable to distinguish between two kinds of constraint referred to above, namely constraints on publication of material disclosed in court proceedings and publication of material having no connection with court proceedings except its capacity to affect current or future proceedings. Because the orders in the present case do not fall within the first category they do not involve any constraint upon the principle of open justice; they do not impinge in any way on the rights of the applicants to publish what may happen at the trial. Rather they are limited to the pre-trial (and on-going) publication of material having a tendency to interfere with the fairness of the anticipated trial. An order designed to protect the proper administration of justice, without impinging upon the principle of open justice, may well be considered necessary so long as it is reasonably appropriate and adapted to achieve its perceived purpose: compare Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [31] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) and Thomas at [102] (Gummow and Crennan JJ).”

38. Such considerations were at the forefront of my mind, when I refused the application (with one exception) to close the Court during the hearing of a large number of witness’s evidence: R v Qaumi & Ors (No 9) (Court Closure) at [19]-[23].

39. Closing a court to the public or the kinds of alternative suggestions made in that application (for example, registering the names of members of the public who sought to enter the court room) is at the extreme end of interference with the public interest in open justice. An order prohibiting publication of all of the evidence and submissions in the courtroom is also a significant interference with the principle of open justice. That is particularly so if the order is to remain in force for an extended period of time. However, making such orders does not represent the same kind of interference with open justice principles as closing the court. The extent to which that is so will turn on the duration of the order.

Orders that have been made in other cases

40. Senior Counsel for Farhad and Mumtaz Qaumi acknowledge the force of this line of authority and the imposing test provided by the case law and the terms of ss 6 and 8 of the Court Suppression Act. However, they drew to my attention a number of cases in which orders have been made in order to protect the integrity of forthcoming or upcoming court proceedings.

41. For example in “Mr C” (1993) 67 A Crim R 562, the Court of Criminal Appeal determined that, in spite of the absence of a clear statutory power, the Court should exercise its inherent jurisdiction to protect the integrity and fairness of a future trial by referring to the applicant by a pseudonym. Hunt CJ at CL (with whom Smart and James JJ agreed) said at 565-566:

“The legitimate public concern in the identity of the particular convicted prisoner who is seeking leave to appeal in this case is not of such moment as to outweigh the interests of justice that the applicant's murder trial proceed without prejudicial interference. If the application is refused, the applicant will unnecessarily be given an arguable appeal point in the event that he is found guilty of the murder charge, and there may in any event linger an unfortunate public impression that his trial was not as fair as it should and could have been: cf Glennon (1992) 173 CLR 592 at 614; 60 A Crim R 18 at 33-34.”

42. His Honour also made other observations in the case of Mr C which are relevant to the present applications. First, his Honour’s judgment demonstrates that it is legitimate to take into account the previous media coverage in attempting to discern the likely or probable nature of the media coverage that would attend the trial upon which I am about to embark. His Honour said at 565:

“The evidence in support of the present application includes the publicity already given to the applicant's committal proceedings on the charge of murder. That publicity was extensive, and I would certainly draw the inference from it that the media is unlikely to exercise any voluntary self-restraint in relation to any other matter in court in which the applicant is involved.”

43. His Honour also referred to the possibility of delaying the murder trial in order to allow the publicity to abate. His Honour said at 566:

“There has already been a considerable delay in bringing the murder charge (through lack of any awareness by the authorities of the applicant's actions), and both the family of the deceased and the community generally are entitled to have that charge resolved as soon as reasonably possible.”

44. Senior Counsel for Farhad Qaumi next referred to the decisions in R v GSR (1) [2011] NSWDC 14, R v GSR (No 2) [2011] NSWDC 16 and R v GSR (No 3) [2011] NSWDC 17. That was a case involving a surgeon who was subject to a series of back-to-back trials. The media had styled him the “Butcher of Bega” and his trials and court proceedings had attracted significant media publicity. At the conclusion of the first trial, the District Court Judge presiding determined that the media coverage had been so extensive that the likelihood of obtaining an unbiased jury in the current climate was such that it was in the interests of justice to order a judge alone trial.

45. Reference was also made to R v Abdallah (No 2) [2014] NSWSC 111 where orders were made to suppress the name and identity of a witness who was to give evidence in a trial and who had been charged with contempt for refusing to answer questions.

46. In R vMcNeil [2015] NSWSC 357, Johnson J made orders prohibiting publication of the pending trial of the applicant along with the use of a pseudonym in order to prevent the possible prejudice to the accused’s forthcoming murder trial. At the end of hearing arguments on the application for a judge alone trial, I made similar orders for the same reasons in order to protect the integrity of the present trial proceedings: see R v Qaumi and Ors (No 10) [2016] NSWSC 25. However, those orders do nothing to protect the two Qaumi brothers from prejudice in their conduct of the Antoun trial.

47. Mr Stratton also referred to case where a judge sitting in the bail Court ordered non-publication in relation to the details of that case on the basis that failure to do so would interfere with the rights of that applicant for bail to a fair trial in the ensuing months: see JM v R [2015] NSWSC 978. That case is distinguishable because the bail judgment related to exactly the same charges as the trial that the non-publication order was designed to protect. Similar orders are often made in the bail Court and also in the Court of Criminal Appeal when an order for a new trial is made.

48. The cases to which Mr Stratton SC referred provide some support for the proposition that a court may make orders which interfere to some degree with the public interest in open justice. However in none of those cases was an order made suppressing all of the evidence in a trial in order to protect a forthcoming back-to-back trial.

Back-to-back trials and the possibility of delaying the commencement of the Antoun trial

49. Senior Counsel for Mumtaz Qaumi was able to identify one case in which such an order was made. However, that was a case of some significant antiquity and it is difficult to apply that case to the facts and circumstances that pertain in 2016. The case upon which Mr Young SC relied was the case of R v Clements (1821) 4 B & A 218; 106 ER 918 in which Abbott CJ made an order at the commencement of the trial of an indictment for high treason that there should be no publication of any of the proceedings until the whole trial (really a series of trials) came to a conclusion. The indictment had been found against a number of individuals. However, the charges had been severed and the accused were to be tried separately and sequentially. The Court of King’s Bench held that the order was properly made on the ground that the proceedings would not terminate until the last of the prisoners had been put to trial. Bailey J said (at 230) that the court “had authority to make any order which they might judge to be necessary, in order to preserve the purity of the administration of justice”. The foregoing is the summary provided by McHugh JA (as his Honour then was) in John Fairfax & Sons Ltd v Police Tribunal (NSW) at 477. McHugh JA noted that “the decision in R v Clement was approved by Viscount Haldane LC in Scott v Scott [1913] AC 417 at 438 and by Lord Atkinson (at 453-454).”

50. However McHugh JA went on to doubt that R vClements was authority for the proposition that such an order was “binding on members of the public”. The case was also considered by Spigelman CJ in John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales from paragraph [68]-[79] where the former Chief Justice concluded at [79] that it “is by no means clear to me that R v Clements is authority supporting a power to make orders directly binding upon the public at large, relevantly the media.”

51. I accept that R vClements provides some authority that there may be circumstances in which a court may suppress the publication of evidence in order to protect the integrity of other criminal proceedings. However, the case is of significant antiquity and was decided at a time when the average length of criminal proceedings was days rather than months. I confess that I am not greatly assisted by a consideration of the decision of an English court in the early part of the 19th century. Nevertheless I am grateful to Senior Counsel for having drawn the existence of the case to my attention.

52. Returning to where I began, Spigelman CJ in John Fairfax Publications v The District Court of NSW & Ors made important observations in relation to the circumstances of a back-to-back trials. His Honour’s comments at 360 are worth repeating in full:

“It is conceivable that media publicity may create a situation in which an accused will not be able to have a fair trial within a reasonable period or at all. In that circumstance an anticipatory non-publication order may be needed to ensure fairness to the prosecution. However, that exceptional case is so unlikely that it cannot form the basis for an implication of a power on a test of necessity. Applications for a permanent stay have failed in the most sensational of cases: Anita Cobby, Ivan Milat, Phillip Bell, the Childers Backpacker Hostel fire, Lucy Dudko, William D'Arcy, Bruce Burrell. (Murphy v The Queen (1989) 167 CLR 94; R v Milat (Court of Criminal Appeal, 26 February 1998, unreported); R v Bell (Court of Criminal Appeal, 8 October 1998, unreported); R v Long (2002) 128 A Crim R 11; R v Dudko (2002) 132 A Crim R 371; R v D'Arcy (2003) 140 A Crim R 303; R v Burrell [2004] NSWCCA 185.)

If the truly exceptional case ever arises it can be handled by the exercise of the protective inherent jurisdiction of the Supreme Court. In any event, I find it quite inconceivable that such a case could emerge from the publication of a verdict after anything like normal publicity of the course of a trial.

In civil proceedings, which were conducted in camera as they concerned a threat of disclosure of confidential information, a restriction on the publication of the order was found to have gone too far. In David Syme & Co Ltd v General Motors-Holden's Ltd [1984] 2 NSWLR 294 at 301D–F, Street CJ said:

‘… I find it almost inconceivable to contemplate a case in which there should be a total black-out upon the terms of the order. Important as it is that proceedings and reasons should be heard and stated in public, it is even more important that the solemn formality of a curial order should be capable of publication. To admit to exceptions to this requirement is a far reaching step. It affects not merely the individual against whom the order may be made. The public itself has a right to know what orders are being made by courts and it is incumbent on judges so to formulate their orders as to give effect to this right.’

I agree with Street CJ. The qualification in the word almost appearing before ‘inconceivable’ cannot satisfy a test of necessity.

There are situations in which back to back trials are desirable. The issue would arise most acutely in such a case. However, those situations encompass considerations such as the convenience of witnesses, the efficient deployment of prosecutorial resources, the effective management of a court's caseload. Considerations of convenience and efficiency are a wholly inadequate basis to justify the implication of a power to prohibit publication of a verdict. If such considerations are to operate as a qualification of the principle of open justice, express statutory authority is required.

I have not overlooked the fact that the ability of a stay or adjournment to ensure a fair trial has been substantially attenuated by the immediate accessibility of information on the internet with an efficiency that overrides the practical obscurity of the past. This accessibility poses significant challenges for the administration of criminal justice. (See HM Advocate v Beggs (No 2) 2002 SLT 139; Director of Public Prosecutions v Weiss [2002] VSC 153; R v McLachlan [2000] VSC 215; R v Long; R v Cogley [2000] VSCA 231 at [10]–[18]; R v K (2003) 59 NSWLR 431; R v Crowther- Wilkinson [2004] NSWCCA 249.)

Legislative intervention is advisable. (Section 69A of the Jury Act 1995 (Qld) prohibits inquiries by jurors, including by searching electronic databases.) In R v Burrell, I indicated that it may be desirable for the Crown to conduct searches in advance of a trial and, where necessary, request Australian-based websites to remove references to an accused for the period of a trial. In New South Wales the standard directions to a jury warn the jury not to access internet databases. In some cases it may be necessary to return to the past practice of sequestering the jury. In some cases a judge-alone trial may be appropriate.

The courts are still adapting to this new technology. However, nothing suggests that a power to order non-publication of a verdict is necessary to meet this challenge.”

53. Three things must be remembered in applying the decision in John Fairfax Publications v District Court. First, the decision related to the powers that could properly be implied into the jurisdiction of a statutory court (i.e. the District Court of New South Wales). It was not concerned with the inherent power enjoyed by a superior Court. The power of this Court to make such orders was acknowledged when his Honour said “if the truly exceptional case ever arises it can be handled by the exercise of the protective inherent jurisdiction of the Supreme Court”. Second, the decision by the primary Judge was to order the verdict in circumstances where there had been no restriction on the publication of the evidence and submissions. Finally, it demonstrates that the anticipated publicity surrounding a trial and its likely interference in the process of justice must be extreme or extraordinary before such an order will be made, even by a Court with inherent jurisdiction to make it.

54. Counsel for the Intervenors suggested a number of alternatives which were available and which demonstrated that the orders sought by the accused are not necessary in the relevant and restrictive sense contemplated by the authorities. In particular, he submitted that an adjournment of the Antoun trial was an available option and that the existence of that option meant that the orders sought are not necessary. In advancing this submission, he placed significant reliance on the observations of Spigelman CJ to which I have just referred.

55. In response to the suggestion from the media that the second trial could simply be adjourned for a period to allow the media attention to abate, the Crown Prosecutor – who strongly supports the application made by the accused – made the following compelling and forceful submission:

“Your Honour would take into account other matters such as, well, these are murder trials, three murder trials and related offences. They do involve family and friends of deceased who have an interest in these matters proceeding as speedily as possible. Now, I should put first, of course, the accused have that interest and the Court should take great care in ensuring that their trials proceed as speedily as possible.

So there is the interests of those who are either victims or family or friends of deceased. There is, in this case, as I indicated, up to potentially five of the informer witnesses giving evidence in the Antoun matter and 12 or 13 in the first trial. There is an interest in our submission, both a public interest and in the administration of justice, that those in the position of an informer, that their evidence is taken on the relevant proceeding as soon as possible.” [10]

10. T 1182.

56. Further, the Crown Prosecutor was able to take me to a case in this Court where an order along the lines of that sought here was made. That was a decision of Hidden J in R v A, S and M [2005] NSWSC 478. That case received some notoriety and was subject to significant media attention. In the course of its progress through the courts, the accused were known by other pseudonyms: see R v MSK and MAK [2004] NSWCCA 308; 61 NSWLR 204, R v MAK; R v MSK [2005] NSWCCA 98, R v MAK; R v MSK; R v MMK [2005] NSWCCA 369 and Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386. The case involved a group of Pakistani brothers who were on trial for a series of sexual assault offences against young women or teenage girls. There were a number of similar features in the cases and they were to be tried in a series of back-to-back trials. In the present case, the learned Crown Prosecutor provided not only a copy of Justice Hidden’s decision but also the transcripts of the argument on 16 May 2005 and 21 July 2005. [11]

    11. These were marked MFI 82.

57. Unlike some of the cases to which I have been referred where non-publication orders were made in the absence of any contradictor or representative of the media, the decision of Hidden J was made in the face of strong opposition by counsel appearing for a media organisation (the Australian Broadcasting Corporation). The decision was made under s 292 of the Criminal Procedure Act 1986 (NSW), as it was then formulated, but it is clear from the judgment that his Honour was guided both by the important principle of “open justice and the value to the community of fair and accurate media reporting of court proceedings” (at [3]) and ultimately by the question or test of necessity (see, for example, [5]). His Honour considered the various alternatives that had been put before him but concluded that it was necessary to make an order suppressing the evidence in the first trial in order to preserve the integrity of the subsequent trials.

58. Plainly, the circumstances in every case are different and it appears that the case of R v A, S and M did not involve a suppression or non-publication order that would have effect for a number of months, as is the situation here. Still, the case provides some guidance as to the circumstances in which such an order might properly, and consistent with principle, be made.

Postponing, rather than prohibiting, publication

59. There is no controversy in the present case that there is power in an appropriate case to make the kind of orders that he suggested. Counsel for the media very properly drew my attention to the decision of the English Court of Appeal in R v Horsham Justices, ex parte Farquharson & Anor [1982] 1 QB 762 where Lord Denning M. R. said at 791:

“It has long been settled that the courts have power to make an order postponing publication (but not prohibiting it) if the postponement is necessary for the furtherance of justice in proceedings which are pending or imminent.”

60. His Honour went on to cite the decision of R v Clements to which reference has previously been made in the course of this judgment.

61. Whilst it is clear that there is a power in the Court to make the orders sought, the real controversy in the present case is whether such orders are necessary or whether other alternatives are available. Central to the controversy is a series of cases concerning the robustness of juries in criminal trials and their capacity to obey judicial direction.

Submissions in relation to Juries

62. In assessing the submissions of both the accused and the Crown Prosecutor to the effect that the anticipated media coverage of the current proceedings will impact upon the ability of the accused to receive a fair trial in the second trial, it is necessary to keep firmly in mind a series of propositions relating to the capacity of lay juries to put aside matters of prejudice and emotion and to obey directions given to them by the trial judge. A number of these propositions were helpfully set out in an annexure to the submissions of Mr Lewis who appeared for the Intervenors.

63. The first proposition is that jurors are not considered to be “exceptionally fragile and prone to prejudice”: see John Fairfax Publications Pty Ltd & Anor v The District Court of NSW & Ors at 103 (Spigelman CJ).

64. Secondly, the courts proceed on the assumption that jurors are true to their oath and comply strictly with the directions given to them by trial judges: see, for example, Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim at [62]-[63], R v Jamal [2008] NSWCCA 177; 72 NSWLR 258 at [19]. In Jamal Spigelman CJ said:

“The perspective that jurors properly perform their task, are true to their own oath and comply with the trial judge’s directions has repeatedly been applied in appellate courts over recent years.”

65. In Gilbert v The Queen [2000] HCA 15; 201 CLR 414 McHugh JA said at [31]:

“The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one – accused, trial judge or member of the public – could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.”

66. There have also been occasions when it has been held that pre-empanelment procedures can safeguard against the possibility that a juror prejudiced by pre-trial publicity will find their way onto the jury: see, for example Digital News Media Pty Ltd & Anor v Mokbel & Anor [2010] VSCA 51; 30 VR 248. In that case, which involved a notorious criminal defendant, Buchanan JA said at [92]:

“It then falls to the trial judge, after hearing submissions, to determine the seriousness of the risk to the trial process, and, where appropriate, to take steps to protect the process. There are many strategies available. These include postponing the trial and changing its venue. The judge may remind the jury panel before the jury is struck of their obligation to try the case only on the evidence to be presented and, having done so, enquire whether any member of the panel felt unable to discharge this obligation by reason of the pre-trial publicity. The judge will normally expect that the media will refrain from publishing prejudicial material, but, in the case where this is necessary, he or she may make an order with respect to the existing or future publication of such material.”

67. Reference might also be made to the strategies and comments of Brennan J in The Queen v Glennon (1992) 173 CLR 592 at 614 to 615, including his Honours remarks on the necessary reliance that courts must place on the integrity of jurors:

“Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced.”

68. While I will certainly proceed on the basis of the authorities to which I have just made reference, and while the robustness and the capacity of a jury generally to obey directions is not in doubt, the question here is whether the nature and extent of the anticipated publicity arising from the present trial will be such that it will be impossible to obtain an untainted jury panel for the Antoun trial. In other words, will the members of the panel called for the Antoun trial have been influenced to a degree that the accused’s trial would have to be postponed or where there is a real risk of a miscarriage if the case proceeds shortly after the present trial.

69. In some respects the process is reminiscent of the comments of Basten JA in Commissioner of Police v Nationwide News [2007] NSWCA 366; 70 NSWLR 643 at [85]. His Honour said:

“An application, such as this, for non-publication of evidence given in Court engages an atypical aspect of the judicial function. At one end of a spectrum, the judicial function is concerned with establishing past facts and applying relatively precise rules or principles to those facts to reach a judgment. The present exercise involves the application of ill-defined and imprecise conflicting principles, on the basis of speculation as to future consequences.”

70. His Honour went on to refer to the limits on the principle of transparency and open justice at [89]:

“Like all broad principles based on public policy, the principle of transparency has its limits. Critically for present purposes, it should not be allowed to operate in a manner which is self-defeating. Thus, it should not operate where the likely consequences are to diminish rather than enhance the operation of the judicial process and public confidence therein. The point at which that limit is reached in a particular case is beyond precise definition and is a matter of evaluative judgment.”

71. In The Queen v Glennon at 611-612 Brennan J said:

“Another phenomenon which has contributed to the problem in recent years, especially in the media of television and radio, is the promotion of personalities who affect to convey the moral conscience of the community and to possess information, insights and expertise in exceptional measure. The image of some media personalities as informers of the public and moulders of public opinion is assiduously cultivated. When the belief is held that the public interest is served by publication of observations and opinions by media personalities on topics of contemporary relevance, publication may not always be restrained by the need to allow a fair trial for a person charged with the commission of crimes that have attracted public attention.

.........

The integrity of the administration of justice in criminal proceedings is of fundamental importance to a free society. Freedom of public expression with reference to circumstances touching guilt or innocence is correspondingly limited.”

72. Having considered closely the evidence tendered on the application and the submissions of the parties, I have concluded that, unless there is some restriction or suppression on the publication of evidence in the present trial, it will not be possible to proceed with the Antoun trial for some significant time. In short, it is necessary to make some form of order to protect the integrity of the Antoun trial. It is not merely “convenient, reasonable or sensible”. It is necessary. Once that is accepted, consideration must be given to the form that such an order must take. In formulating the order, the test of necessity remains at the forefront of consideration and the order that is least intrusive upon the public interest in open justice is the order that should be made.

Alternatives proposed by the Intervenors

73. Mr Lewis submitted that “there are alternative orders that would militate against any prejudice caused to the accused at the second trial, thereby rendering the relief sought in the applicant’s motion unnecessary (within the meaning of the Court Suppression Act).” He provided a number of alternative suggestions.

74. The first proposition was that “rather than prohibit in any publication the fair reporting of the first and second trial, the second trial may be postponed for a reasonable time after the first trial concludes.” As I have said at [55] above, the learned Crown Prosecutor made a forceful submission against this proposal. As he put it, there are victims and informant witnesses who have an expectation that the Antoun trial will proceed as soon as possible. The family and friends of Joseph Antoun are entitled to see those accused of orchestrating his brutal killing brought to trial in a timely fashion. For a better understanding of the nature of the killing of Joseph Antoun, and its impact upon his loved ones, see R v NK (No 3) [2015] NSWSC 1257 at [34]-[49] and [50]-[59]. The shooting, which took place in the family home and in the proximity of the victims’ young daughters, is a matter that is difficult to erase from the memory of the victim’s wife, who was present when the killing occurred.

75. It is also the case that five (of the thirteen) informant witnesses are to give evidence in both trials. The sooner that they are able to complete this task, the sooner they will be able to move on with their lives, either by continuing to serve the sentences that they are serving or otherwise. The longer that the case remains before the Court, the longer these witnesses will remain the focus of attention, with the consequent danger to them.

76. The accused are also entitled to a resolution of the charges in a timely fashion. Each of them are on remand, with bail refused, awaiting their trials. Each has entered a plea of not guilty. They have been in custody since 8 January 2014. In the event that either or both of them are acquitted in relation to the present trial, they would be entitled either to a speedy resolution of the Antoun trial or for serious consideration of their release on bail One can only imagine the media outcry if either of them was to be granted bail because the Antoun murder trial was postponed for a substantial period of time.

77. I accept the learned Crown Prosecutor’s submission that postponing the Antoun trial, in order to give effect to the public interest in open justice, is not an appropriate solution in the circumstances.

78. The second solution proposed by the Intervenors was that “consideration may be given to changing the venue of the second trial.” While this was a submission made in written submissions, it was not pressed on the hearing of the application. [12] Changing the venue is not a viable option in the circumstances of the present case. The number of possible venues is geographically limited and there is also nothing to suggest that the kind of media coverage that is anticipated would not influence a jury elsewhere in New South Wales. Further, this is a Sydney case and it should be decided by a Sydney jury.

    12. T 1197.

79. The third solution suggested was that an order prohibiting publication of the pending second trial should remain in force until the trial commences. Such an order could be made in conjunction with a suppression order so that the applicant’s name would not appear in the court list. This, it was submitted, may prevent a reporting of the present trial triggering electronic searching by members of the public who may be members of the jury panel in the Antoun trial. Such an approach was taken by Johnson, J in R v McNeil [2015] NSWSC 357 at [84]. I made a similar orders in this case: R v Qaumi & Ors (No 10) [2016] NSWSC 252. This order was designed to ensure that members of the jury panel called for the present trial did not become aware of pre-existing publicity on the internet once they became aware of the names of the five accused men. It is not that concern to which the present application is directed. Rather, the concern is that the kind of media coverage that the present trial will attract is likely to infect the potential jury pool summonsed for the Antoun trial. This third solution will do little, if anything, to protect against that concern. While this third alternative has the capacity to protect the accused from what have been described as “googling jurors”, [13] it does nothing to prevent the potential jury for the second trial being influenced by the media coverage relating to the first trial.

    13. See Roxanne Burd and Jacqueline Horan, “Protecting the right to a fair trial in the 21st century – has try by jury been caught in the world wide web? (2012) 36 Criminal Law Journal 103 at 115-116.

80. The fourth alternative was to suggest that the Court might simply reverse the order in which the trials are conducted. In written submissions it was put in this way:

“To the extent that the first trial will be heard by a judge alone and the second trial will be heard by a jury, it may be possible to hear the second trial first in time.”

81. There are a number of problems with this proposed solution. First, while the five accused applied for a judge alone trial, their application was refused: see R v Qaumi & Ors (No 14). Second, the order in which indictments are presented is a matter for the Director of Public Prosecutions and the learned Crown Prosecutor. It is not a matter for the judge, let alone the media. The Crown Prosecutor made it plain in the course of argument that he proposed to run the present trial first. That makes sense given that three of the accused are in custody, with bail refused, largely (if not exclusively) in respect of the charges to be determined in the present trial.

82. The fifth alternative proposed by the media interests is the most attractive and was that, “the court may order that the non-publication of the identities of the accused, or by pseudonym”. Orders of a similar nature were made on the application of the Crown in relation to the putative victim of counts 1-3, Mohammed “Little Crazy” Hamzy, who has a Supreme Court murder trial due to start on 14 June 2016: R v Qaumi & Ors (No 12) [2016] NSWSC 294. That application was not opposed by the Intervenors. An alternative along these lines was hinted at by Senior Counsel for Mumtaz Qaumi, and there was some suggestion in argument that alternative orders may be drafted. [14] However, no such orders were ever provided and, for reasons to which I will return, Senior Counsel for both accused ultimately submitted that such a restriction would not achieve its purpose because there are too many “unique identifiers” that inevitably link the two cases.

Would a pseudonym or other order restricting publication of the identity of the accused prevent the prejudice to the proper administration of justice?

14. T 1139-1140.

83. The fifth alternative proposed by the media is the most attractive and the only possible solution that has any realistic prospect of working. At times during the argument, Senior Counsel for Mumtaz Qaumi seemed to accept that this may be a possible solution. However, the suggestion that he might draft some alternative orders was never taken up. He appeared to reach the conclusion that there was “real difficulty trying to fashion something that would work in the circumstances of this case.”

84. Similarly, but more forcefully, Senior Counsel for Farhad Qaumi submitted that it was not possible to fashion orders of that kind that would protect the accused because there were “so many unique identifiers which, even if there was a suppression order, a jury would very easily be able to connect the two trials.” He referred to the common facts between the two trials including the names of the criminal organisation involved (Brothers for Life, Blacktown) the fact that the group were mostly Afghani, the identities of the co-accused and the inevitability of it emerging that most or all of the five informants were common to the two trials. This is but a small selection of the common features between the trials in terms of the evidence in the case. Senior Counsel also pointed to common features outside of the evidence, such as the Court, the Court complex, the identity of the lawyers and the trial Judge.

85. In the course of determining a large number of pre-trial issues, I have become reasonably familiar both with the Crown case in general terms and also with the specific evidence expected to be given by the informant witnesses including witnesses L and M. While there was no request (and nor would it have been practical) for the Intervenors to be provided with all of the material that has been tendered in the course of the pre-trial hearing and sentencing hearings over which I have presided, variations were made to the non-publication orders attaching to the judgments to enable counsel for the Intervenors to understand the nature of the issues and evidence in the two trials. While the suggestion of a pseudonym order was made, there was no attempt to identify the precise form of order that might be effective in masking the identity of the two accused as being involved in both trials.

86. I have contemplated whether orders could be made that would prevent a potential jury pool from being infected or influenced by the media coverage. Such orders would be calculated to ensure that the media coverage was restricted in such a way that there would be no publication of the accused’s names or material capable of identifying them. Such an order would necessarily involve specifications that would ensure that there be no link between the two sets of trials. In view of the evidence of witnesses L and M and the other informants along with a number of other features of the Crown case, I am unable to postulate or formulate a series of orders that would achieve that purpose. Witness L was sentenced by me in September 2015 and I heard him give evidence in the course of the pre-trial hearing in December last year. In the course of those proceedings I became familiar with 1-2 volumes of statements and interviews made by witness L. Similarly, witness M is to be sentenced before me and the sentencing proceedings are part heard. Again, I have read a number of statements provided by witness M (each of which was a confidential exhibit on sentence).

87. Having considered the matter, including possible alternative orders, at some length, I find myself accepting the submission made by Senior Counsel for Farhad Qaumi. In both trials, witness L, and other witnesses to be called by the Crown, are expected to give evidence relating to the background circumstances and their involvement with the Qaumi brothers. This evidence will be elicited to explain why they conducted themselves in the way that they did. A significant part of the Crown case against Farhad Qaumi in both trials will be the evidence of a number of witnesses who (it is anticipated) will say that he used violence, threats and intimidation to ensure that they obeyed directions. A number of specific incidents will be relied on. As between the two trials, there is a commonality of the evidence and the incidents to which that evidence relates. It is impossible to imagine that the common features of that testimony would not be obvious to any member of the jury pool summoned in the Antoun trial.

88. It is, in my assessment, impossible to predict in advance (and then to particularise and formulate an order) the precise content of each and every item of evidence that might lead a potential juror to realise that the two men said to have ordered the execution of Mr Antoun were also the leaders of the group of men subject to the twenty or so allegations in the first trial.

89. For these reasons, I have concluded that it is not feasible to fashion orders that would be effective in hiding the identity of the two accused. If such orders were possible, it would not be necessary to make an order prohibiting (or, more correctly, postponing) publication of the evidence and submissions in the present trial. If my ultimate conclusion is wrong, I would certainly have been persuaded that some form of order designed to suppress the identity of the accused and links between the two trials should be made.

Delaying publication is the least intrusive option available

90. As I have earlier indicated in the course of these reasons, it is well established that a judge has the power to delay publication of such material as opposed to prohibiting its publication altogether. That is the consequence of the orders that I propose to make. They will remain in force until a designated and nominated event, namely the conclusion of the Antoun trial or, alternatively, any order under s 132 of the Criminal Procedure Act that the Antoun trial is to be tried by Judge alone.

91. I accept that this is a significant intrusion into ability of the media to provide full and fair reporting of the case, particularly on a daily bais. However, it is far from an absolute one. The public, whose interests are to be protected by this order, will obtain full and fair reporting of what has happened in the trials, but it will receive the benefit of that media coverage after the trials have come to an end. That may entail a delay of something in the order of four to six months.

Business difficulties and the public interest

92. One of the submissions put on behalf of the media in the course of oral submissions was this:

“Just on the practicalities of the length of trial, if an order was made preventing any of my clients from publishing anything to do with the evidence that would practically mean at least six months approximately based on the fact that the Antoun proceedings would directly follow whereby the public who have a right to be in Court will not know anything. And practically it is going to be difficult from a business end to provide a fair and accurate report of six months’ worth of trials. One might envisage the scenario where you might have a two page spread, as it might be called, or something similar, but it is very difficult from a journalistic point of view to provide a fair and accurate report in such circumstances. So the reality might be that the public would be told very little at all. I merely observe that from a practical level.” [15]

15. T 1200.

93. The “difficulties from a business end” were not more clearly identified and were not the subject of evidence. However, I assume that the problem is that it would not be “economic” (my word) for a media organisation to have a reporter in Court if it were not able to obtain the financial advantage of providing daily reports on the nightly news, the daily newspaper or regularly over the internet. However, there will be transcripts and exhibits available to those members of the media with a genuine interest in conveying the whole of the story and that story can be told at the conclusion of the trials (or if the Antoun trial is to be by judge alone, at the conclusion of the present trial). While I understand that such difficulties might have an impact on the amount of media attention that the case receives, I am not persuaded that this consideration has a substantial impact on the public interest in open justice and full and fair reportage of the things that happen in our courts. The business difficulties envisaged by Mr Lewis are not sufficiently identified to have any significant impact on the difficult decision that I am here called upon to make.

Conclusion

94. For those reasons, and in the terms of s 8(1) of the Court Suppression Act, I am satisfied that:

95. (a) the order is necessary to prevent prejudice to the proper administration of justice;

96. (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.

94. One of the important “public interests” in terms of paragraph (e) is the interest in those accused of murder being brought to trial without undue delay and the public interest in the secondary victims of the Antoun murder seeing justice done as expeditiously as possible.

95. An abiding consideration is that the effect of the orders that I will make is to postpone, not prohibit, publication of full and fair reports of the trial proceedings.

96. I make the following orders:

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.

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Endnotes

Decision last updated: 22 November 2016