R v Qaumi & Ors (No 16) - [2016] NSWSC 319

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Qaumi & Ors (No 16) (Internet “take down” orders) [2016] NSWSC 319
Hearing dates: 16 March 2016
Date of orders: 24 March 2016
Decision date: 24 March 2016
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) ABC to remove from its website an article published on 27 October 2014 entitled “Brothers 4 Life Four alleged gang members charged with Mahmoud Hamzy’s shooting murder”.
(2) ABC News to remove from its website an article published on 12 December 2014 entitled “Brothers 4 Life Fifth alleged gang member in court, charged with Mahmoud Hamzy’s murder”.
(3) The publisher of the Daily Telegraph to remove from its website an article dated 27 October 2014 entitled “Four charged with murders of Mahmoud Hamzy and Joe Antoun”.
(4) The publisher of the Daily Telegraph to remove from its website an article dated 28 October 2014 entitled “Did legal clerk [Witness M] plot a gangland murder?”
(5) The publishers of the Sydney Morning Herald to remove from its website an article dated 10 January 2014 entitled “Farhad Qaumi arrest: Brothers 4 Life shootings linked to power struggle police say”.
(6) The publishers of the Sydney Morning Herald to remove from its website an article dated 27 October 2014 entitled “Brothers 4 Life members charged with murder of Joe Antoun and Mahmoud Hamzy”.
(7) The publisher of the Sydney Morning Herald to remove from its website an article dated 28 October 2014 entitled “Contract to Kill: The story of an alleged $200,000 hit”.
(8) The publishers of the Sydney Morning Herald to remove from its website an article dated 19 June 2015 entitled “Brothers 4 Life: Mega-trial approved”.
(9) The publisher of the website to remove an item dated 27 October 2014 entitled “Brothers for Life gang come crashing down”.
(10) The publisher of the website to remove from its website an article dated for 4 June 2015 entitled “Alleged B4L Members Laugh in Court”.
(11) The removal of orders (1) to (10) is to occur by 4 April 2016.
(12) Orders (1) to (10) apply throughout the Commonwealth of Australia.
(13) The orders are to continue until the conclusion of the trial of Jamil Qaumi and others scheduled to commence on 4 April 2016 or until further order.

Catchwords: CRIMINAL LAW – non-publication – take down orders – removal of online internet articles – contamination of jury pool – pre-trial publicity – googling juror – internet searches – futility – World Wide Web – sensational and tendentious reporting – publication of “vast criminal history” – gangland violence – publication of charges severed from indictment – whether take down orders necessary –whether orders futile – where similar material published on other websites – where material published overseas – limits of jurisdiction – enforceability of orders – jurors complying with directions – examples of jury misconduct – “jurors behaving badly” – juror inquiries
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW)
Criminal Procedure Act

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 319
Decision Date: 24 March 2016

CaseChat Overview and Summary

The appeal was brought by three respondents, Qaumi, Al-Zein and Zidan, against the orders of the Supreme Court of New South Wales for the removal of certain internet articles. The respondents were facing criminal charges and sought to have the articles removed to prevent contamination of the jury pool. The appeal was heard in the High Court of Australia. The central issue before the court was whether the trial judge had the jurisdiction to make orders for the removal of online content and whether such orders were futile given the widespread availability of the content on other platforms and overseas. The court had to consider the limits of its jurisdiction and the enforceability of the orders within Australia, as well as the potential for jurors to comply with directions not to engage in internet searches.

The court held that the trial judge did have the jurisdiction to make such orders, but that the orders were largely futile given the global nature of the internet and the availability of the material on other platforms. The court noted that while the orders could be enforced within Australia, they could not be enforced overseas. Furthermore, the court observed that jurors could still access the material through various means, such as using different search engines or accessing the material from overseas. The court also highlighted the potential for juror misconduct, even when complying with directions not to engage in internet searches. The court ultimately concluded that the orders were largely futile and could not effectively prevent contamination of the jury pool.

In light of the above, the court allowed the appeal and set aside the orders made by the trial judge. The court emphasised the importance of jurors complying with directions not to engage in internet searches, but recognised the challenges in enforcing such directions in the modern digital age. The court also noted the potential for juror misconduct, even when complying with directions, and highlighted the need for careful consideration of the risks and benefits of making take down orders in such cases. The court did not make any further orders in relation to the publication of the material.

Orders