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 1986 (NSW) Jury Act 1977 (NSW)
Cases Cited:	Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 293 ALR 384 Folbigg v R [2007] NSWCCA 371 Gilbert v The Queen [2000] HCA 15; 201 CLR 414 R v Benbrika [2009] VSC 142 R v Debs [2011] NSWSC 1248 R v K [2003] NSWCCA 431; 59 NSWLR 431 R v Perish; R v Lawton; R v Perish [2011] NSWSC 1102 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 9) (Court closure) [2016] NSWSC 171 R v Qaumi & Ors (No 14) (Judge alone application) [2016] NSWSC 274 R v Qaumi & Ors (No 15) (Non-publication order) [2016] NSWSC 318 R v Skaf [2004] NSWCCA 37; 60 NSWLR 86
Texts Cited:	Bagaric, Mirko, “The community interest in bringing suspects to trial trumps the right to an impartial decision maker – at least in Victoria” (2010) 34(1) Criminal Law Journal Burd, Roxanne and Horan, Jacqueline, “Protecting the right to a fair trial in the 21st century – has trial by jury been caught in the world wide web?” (2012) 36 Crim LJ 103 Gumbert, Jnana, “Jurors Behaving Badly” (2008) Law Society Journal   Hunter, Jill, Boniface, Dorn and Thomson, Don, “What Jurors Search for & What They Don’t Get. Juror Comprehension & Obedience to Judicial Directions Against Juror Sleuthing,” (2010) University of New South Wales Pilot Jury Study, Law and Justice Foundation
Category:	Procedural and other rulings
Parties:	Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi (the Applicant) Mohammed Zarshoy Mohammed Kalal Nationwide News, Fairfax and the Australian Broadcasting Corporation (Intervenors)
Representation:	Counsel: 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) M Lewis (Intervenors)   Solicitors: 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) In-house counsel for media organisations (Intervenors)
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. I am presently considering three separate applications in trial proceedings that have been subject to lengthy pre-trial hearings and are shortly to commence either before a jury or in a trial by judge alone (s 132 of the Criminal Procedure Act 1986 (NSW)). The three applications raise, in different ways and different contexts, many of the same legal issues. The first application is an application for an order under s 132 of the Criminal Procedure Act for a trial by judge alone. To a significant extent, that application was based on the nature and extent of the pre-trial publicity surrounding the charges and the individual accused and witnesses. The second application was an application by two of the accused to prohibit for a period of time the publication surrounding the first of the two murder trials which I have ordered to be conducted sequentially: R v Qaumi & Ors (No 3) (Severance and separate trials) [2016] NSWSC 15.

2. The application with which this judgment is concerned is an application by one of the accused (Jamil Qaumi) for what are sometimes called “take down” orders. By this application, Jamil Qaumi seeks orders that certain items that currently appear on various internet webpages be removed. The application is based on the fear that a juror might undertake internet searches of the names of the accused or other details of the case and find any number of items concerning the accused or surrounding the events giving rise to the charges. Because of the sensational and tendentious nature of many of those items, the accused submits that a juror who did such internet research would be unable to bring an impartial mind to bear on the issues which are to be determined in the trial.

3. A similar application was brought by Jamil Qaumi at the commencement of the pre-trial hearing in November 2015. At my direction, certain media organisations that would be affected by the making of such orders were notified. The matter was listed for argument on 1 December 2015 but when he was called on, counsel then appearing for Jamil Qaumi withdrew the applications saying:

“Having looked at the principal authority in relation to matters that need to be considered under the application, I have come to the view that our orders are not specific enough and I don't propose to move on the motion today. I have spoken to my friend Mr Lewis last night and this morning. It seems that in Fairfax v Ibrahim there is some guidance as to what should happen, and that is that the parties ought to be identified, the material identified and then discussions entered into to see whether there can be some agreement as to limiting the publication of that material prior to trial. There's also a suggestion in the authority that the DPP be brought on board in terms of that process. I have mentioned it to my learned friend this morning. As presently advised, there seems to be general agreement that that's probably not a bad way to proceed prior to moving on any further motion if there can't be agreement reached as to the material to be taken down or restricted.”

4. The present application was brought by notice of motion dated 1 March 2016 and seeks the following orders:

1. Prohibition on the continued internet publication of the articles annexed to the affidavit of Helen Christinson sworn 1 March 2016 until the completion of the Supreme Court trial (indictment 26 February 2016); and

2. Such other orders as this Honourable Court deems appropriate.

5. The media (Nationwide News, Fairfax and the ABC) intervene and oppose the making of the orders. Most of the legal principles affecting this application have been analysed in the course of the other two related judgments. All three judgments are to be published on Thursday, 24 March 2016, in anticipation of a trial commencing on Monday, 4 April 2016. It is common ground that if the application for a trial by judge alone is successful, it will be unnecessary to make the kind of orders sought in this current application.

6. I have decided that the application under s 132 of the Criminal Procedure Act must be refused: R v Qaumi & Ors (No 14) (Judge alone application) [2016] NSWSC 274. Accordingly, it is necessary to determine the outcome of the current notice of motion and whether the orders sought are necessary to protect against the possibility that a juror may be influenced by the material complained of.

7. The Intervenors do not question the power of the Court to make the kind of orders that are sought by the accused. Other judges of this Court have made similar orders in similar circumstances and for the same kinds of reasons that are advanced by the accused: see R v Debs [2011] NSWSC 1248 (R.S Hulme J) and R v Perish; R v Lawton; R v Perish [2011] NSWSC 1102 (Price J). While acknowledging the jurisdiction to make the orders, counsel for the media interests contends that the precise orders sought in the notice of motion are deficient and, more importantly, that the orders sought are not necessary for various reasons. The word “necessary” is used advisedly because, whether the orders are made pursuant to statute or under the common law, there is a stringent test of necessity that must be met by an applicant for orders such as non-publication, closure of the court, suppression of evidence and, relevantly to this case, orders that material be removed from the internet.

8. Essentially the Intervenors submit that the orders are not necessary for two reasons. The first is that the Court must operate on the assumption that the jury, once selected, will obey directions not to undertake the kind of research that would lead them to uncovering the kind of material subject of this application. Reliance is placed on a long line of authorities to that effect in this Court, the appellate courts around Australia and the High Court. I have referred to those authorities in the course of the other judgments to be published today: R v Qaumi & Ors (No 14) and R v Qaumi & Ors (No 15) (Non-publication order) [2016] NSWSC 318. The second reason that the media submits that the orders are not necessary is that the orders would be futile in the sense that removal of the particular nominated items would not result in removal of all items currently on the internet concerning the subject matter of the trial. An affidavit of Ms Mullins, an in-house solicitor with News Corporation, annexes a number of items currently available on the internet that deal with a similar subject matter. In many cases these are no more than a reproduction of the articles subject to the current application. These are not caught by the current notice of motion and will remain available even if the orders are made. Further, a number of these articles are published from overseas websites in relation to which the Court does not have jurisdiction

9. A number of academic articles and judgments have emphasised the fact that the relatively new phenomenon of the internet creates challenges and difficulties when a court is considering the kind of orders that might be directed to the media or other publishers in order to protect the fairness of criminal proceedings involving juries: see, for example, Roxanne Burd and Jacqueline Horan, “Protecting the right to a fair trial in the 21st century – has trial by jury been caught in the world wide web?” (2012) 36 Crim LJ 103 (“Burd & Horan”), Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 293 ALR 384

10. I have concluded that orders should be made that some of the articles referred to in the evidence should be removed from the various publishers’ websites for a period of time. These are my reasons for that conclusion. They are written in circumstances of some haste due to the impending commencement of the trial. Because time does not allow me to restate the facts of the criminal case or to again set out in full the relevant legal principles, these reason should be read with other judgments published today and earlier in the pre-trial hearing: see, in particular, R v Qaumi & Ors (No 3) [2015] (Severance and separate trials) [2016] NSWSC 15, R v Qaumi & Ors (No 14) (Judge alone application) [2016] NSWSC 274, R v Qaumi & Ors (No 15)(Non-publication orders) [2016] NSWSC 318).

Evidence and submissions on the application

11. In support of the present application, Jamil Qaumi reads three affidavits of his solicitor. The first affidavit is dated 1 March 2016 and annexes the 25 items which are the subject of the proposed orders. [1] Those items are:

    1. Part of MFI 70.

“1. 12/01/14 - ABC News - Bail refused for alleged Brothers 4 Life gang members of shooting

2. 7/03/14 - ABC News - Brothers 4 Life 'leader' Farhad Qaumi among 4 charged over Sydney shootings

3. 27/10/14 - ABC News - Brothers 4 Life Four alleged gang members charged with Mahmoud Hamzy's shooting

4. 12/12/14 - ABC News - Brothers 4 Life fifth alleged gang member in court, charged with Mahmoud Hamzy's murder

5. 9/11/13 - Daily Telegraph - Brothers for life gang: timeline

6. 12/11/13 - Daily Telegraph - Brothers 4 Life gang's coded call to attack

7. 9/01/14 - Daily Telegraph - Farhad Qaumi: The rise and bloody fall of a brutal gangster

8. 27/10/14 - Daily Telegraph - Four charged with murders of Mahmoud Hamzy and Joe Antoun

9. 28/10/14 - Daily Telegraph - Law clerk to Killer Queen

10. 24/05/15 - Daily Telegraph - How the Brothers for Life gang blew apart after killer ratted out on his 'brothers'

11. 7/11/13 - SBS News - B4L Trio in court over Sydney drive-by

12. 27/11/14 - Woman granted bail over Sydney gang murder

13 2/11/14 – (Fairfax Media) – Ruthless Sydney Gang Collapses

14.   9/01/14 – Sydney Morning Herald – Police claim to know all Sydney shooting after Brothers 4 Life arrests

15. 10/01/14 - Sydney Morning Herald – Farhad Qaumi arrest: Brothers 4Life shootings linked to power struggle police say

16. 27/10/14 - Sydney Morning Herald - Brothers 4 Life members charged with murder of Joe Antoun and Mahmoud Hamzy

17. 28/10/14 - Sydney Morning Herald – Contract to kill: the story of an alleged $200,000 hit

18. 2/11/14 - Brothers for Life no longer as internal feuds erupt into violence

19. 5/06/15 – Sydney Morning Herald – Brother for Life gang members joke in video link court appearance

20. 11/06/15 – Sydney Morning Herald – Brother 4 Life: DPP wants mega trial to deal with crime gang founded by Bassam Hamzy

21. 19/06/15 – Sydney Morning Herald – Brothers 4 Life: Mega-trial approved

22. 3/09/15 – Sydney Morning Herald - Brothers 4 Life rollover witness jailed for 21 years for crime spree

23. 7/11/13 – The Australian – Gang that terrorised Sydney behind bars

24. 27/10/14 - – Farhad Qaumi: Aussie Criminals and Crooks – Brothers for Life gang come crashing down

25.   4/06/15 – – Alleged B4L Members Laugh in Court”

12. I will refer to those articles as item 1 to item 25.

13. A second affidavit dated 7 March 2016 annexed searches conducted on three search engines (Google, Bing and yahoo7). [2]

    2. MFI 92.

14. During the course of oral submissions, I was told that the Daily Telegraph voluntarily took down item 10. [3] That item referred to the name of a witness known as witness L and included a photograph of the witness, the name and a photograph of his solicitor as well as other information including the fact that he had agreed to give evidence. Such details, or most of them, had been suppressed by earlier orders of the Court: see R v Qaumi & Ors (AVL) [2015] NSWSC 1711 and R v Qaumi & Ors (No 9) (Court closure) [2016] NSWSC 171.

    3. T 1267.

15. After that item was taken down, the solicitor for Jamil Qaumi undertook a further search using the Google search engine and discovered that the offending item no longer appeared on (at least) the first four pages of results. This information was included in the affidavit of Ms Christinson dated 16 March 2016. [4] Ms Christinson swore that a search of “BFL gang” and the full title of the article led to the article appearing on the website of the solicitor who appeared for witness L at the sentence proceedings. I have now been informed that the solicitor has removed the item upon being informed of my earlier orders and the present application.

    4. MFI 97.

16. The point of Ms Christinson’s further affidavit is that, contrary to some of the submissions made on behalf of the media, ordering the removal from the internet of the various items would in fact achieve the end that is sought. In other words, the removal of the specific and nominated 25 items would result in most of the prejudicial material being removed from the grasp of the potential research of the “googling juror”. [5] Whether the evidence presented in the present case allows for such a conclusion is a debatable proposition and one to which I will return.

    5. This is an expression used by Burd and Horan in the article referred to in paragraph [9].

17. The Intervenors read an affidavit of Larina Mullins, the Senior Litigation Counsel for Nationwide News. This affidavit annexed hard copies of a number of items downloaded from the internet which contain similar (in some cases, identical) information to that contained in some of the 25 items subject to this application but which will not be caught by the orders sought. The affidavit also establishes that item 13 is published from a website in New Zealand and that item 24 is published by a web-site ( that is “hosted in the USA” but registered to a person “who appears to be residing in Australia.” The affidavit contains other information and is relevant to the issue of whether making the orders sought would be futile.

18. I received written submissions on behalf of Jamil Qaumi and the Intervenors and oral submissions on 16 March 2016. [6]

    6. MFI 93 and 95.

The Position of the other parties

19. While most of the heavy lifting was undertaken by Ms Carroll on behalf of Jamil Qaumi whose notice of motion brings the application before the Court, the other parties in the trial supported the application. Mr Young SC (on behalf of Mumtaz Qaumi) made specific reference to two cases in which similar orders were made by Judges of this Court: R v Perish, R v Debs. Mr Stratton SC (on behalf of Farhad Qaumi) supported the application and adopted Ms Carroll’s submissions. Ms McSpedden (for Mohammed Kalal) supported the application. Mr Driels (for Mohammed Zarshoy) said that he did not wish to be heard. However, in the application for a judge alone trial, Mr Driels pointed out that item 4 asserts that his client has a “vast criminal history” and that he had “demonstrated a propensity for extreme violence.”

19. The Crown prosecutor put his position thus:

“We support it if your Honour comes to the view that a practical order can be fashioned which provides it. I certainly support, if in some way an order can be fashioned, that if there is to be some reporting of this case that links are eliminated to past articles, whether such an order can be fashioned, I rely on what Ms Carroll has put before your Honour”.

The nature and content of the articles

21. In her helpful written submissions, Ms Carroll grouped the articles into seven categories. Those were:

A: Articles which published the names and other information identifying police informants.

B: Articles which connected the accused to other offences which are not to be referred to in the present trial.

C: Articles which referred to the accused Farhad Qaumi having been accused of previous murders in relation to which he was acquitted. Such evidence has been ruled to be inadmissible in the present trial: R v Qaumi & Ors (No 6) [2016] NSWSC 115.

D: Articles that referred to the accused’s bail status and criminal history and propensity for violence.

E: Articles that link to a video showing the rest of the accused.

F: Articles which provided opinions apparently emanating from senior police officers providing opinions on matters to be decided by the jury.

G: Articles which publish the name and information that might identify police informant known as witness M.

22. In relation to items A and G so categorised, it is important to note that neither the witnesses themselves nor the Crown Prosecutor nor the Commissioner of Police have applied for orders that the articles be taken down. It was the Commissioner’s application(s) that led to the making of the orders protecting the identity of those witnesses. When Ms Carroll was asked what interest her client had in seeking orders on behalf of those witnesses, she replied:

“It is extremely important to the accused whether or not these witnesses are in this courtroom giving evidence in the presence of the jury, as opposed to being on the AVL. And if the safety and the issues surrounding safety which were the subject of your Honour’s orders in R v Qaumi & Ors (No 9) (Court Closure) [2016] NSWSC 171, if all of those steps taken by the courts to ensure the safety of these witnesses means that, as it currently stands, they will all be in the courtroom giving evidence, which on my submission is essential to the fair trial of the accused, then those orders need to be enforced.

Because if it is the case that those orders are being currently breached, that could affect the informant witnesses. If that happens and we lose the ability to have them here in the courtroom so the Court can perceive the evidence, on my submission as is best seen in person, then if there is anything that is going to affect that, that is the only matter that I can put that down to, your Honour.”

23. In spite of the inventiveness of that submission, the present applicant for take down orders has no genuine interest, if indeed he has standing, to seek the orders on behalf of the witnesses. The orders that I have made will serve to protect the witnesses. If further orders are necessary, it will be for the Commissioner of Police to bring an application. I note in passing, that the most egregious example of an article identifying one of the informant witnesses is article number 10 which includes the witness’s name, a photograph of him, the identity and photograph of his solicitor and details of the evidence that he proposed to give. The publisher of that article (the Daily Telegraph or Nationwide News) has voluntarily taken the material off the internet in order to comply with what Mr Lewis described as “the spirit” of the earlier orders.

24. Having read each of the 25 items, I accept that categories B, C, D, E and F have the capacity to influence a juror who reads and digests that material. However, the extent to which those categories and the individual items would have the capacity to influence a jury varies markedly depending on the content of the individual items.

25. The items giving rise to the greatest concern fall into three categories. First, the articles referring to the alleged murder of Joseph Antoun. This is of particular concern because of the reasons that I gave in ordering that Farhad and Mumtaz Qaumi be tried separately in respect of that charge: see R v Qaumi & Ors (No 3) (Severance and separate trial) [2016] NSWSC 15. While reference to other criminal activity which has been excluded from this trial and other charges that will be subject to separate trials may give rise to a degree of prejudice, the allegation that two of the accused orchestrated a separate and unrelated contract killing, perpetrated in cold blood by witness L, has the capacity to create prejudice of a far greater kind. Second, the article (item 15) that refers to the accused Farhad Qaumi committing previous killings. Third, the articles which refer, particularly in sensationalist terms, to Mr Zarshoy’s criminal history and propensity for “extreme violence”.

26. I find myself less concerned with those articles which refer to the bail status of the accused, other criminality unrelated to the present charges and opinions somehow elicited from senior police officers as to the case. Matters such as those can be dealt with by clear direction to the jury.

27. Subject to the question of whether to do so would be an exercise in futility, and judicial faith in the prospective jury to obey directions, decide the case on the evidence and not to interrogate the internet, I am inclined to agree with counsel for Jamil Qaumi that it is necessary to make some order in relation to the articles that fall into the three categories that I have identified.

Jurisdiction

28. Whether orders such as these are to be made under the Court Suppression and Non-publication Orders Act2010 (NSW) (the Act) or pursuant to an inherent power of the Court is a nice question but not one that needs to be resolved in the present case. The kinds of orders authorised by s 7 are concerned with “evidence, or information about evidence, given in proceedings before the Court”. I am unsure whether this captures material that was published some time before the commencement of the trial.

29. As I have said, similar orders were made by the Court in R v Debs (R.S Hulme J) and R v Perish (Price J). The judgments suggest that RS Hulme J took the view that the orders were made under the statute of the Act while Price J made no reference to the Act.

30. In any event, the Intervenors acknowledge that there is a power to make the orders although they make a number of points about the form of the orders. For abundant caution, the orders I make will comply with the sections of the Act concerned with the duration of orders (s 12) and geographical reach (s 11).

Futility and the World Wide Web

31. Counsel for the media, in equally helpful written submissions provided a table in which he showed, by reference to the articles annexed to the affidavit of Ms Mullins, that at least four of the articles (items 7, 9, 23 and 24) had been extensively reproduced on other websites, some or many of which are published overseas and therefore beyond the reach of the jurisdiction with which I am entrusted.

32. In relation to item 13, the point was made that the website is registered in New Zealand and therefore any order made in relation to that article would be unenforceable against the publisher.

33. He also made the point that it is not known what impact the removal of the articles would have in terms of the results thrown up by the various search engines. In that respect, reference was made to comments made by Basten JA in Fairfax v Ibrahim at [78] in relation to the unknowable amount of information that is held on the internet in “cached form”.

34. Accordingly, it was submitted that making the orders proposed would be an exercise in futility because some, most, or all of that material would remain somewhere on the internet. Accordingly, a diligent juror determined to breach judicial directions and the criminal sanctions provided in s 68C of the Jury Act1977 (NSW), would be able to access the material complained of. In this respect, the following observations of Basten JA in Fairfax v Ibrahim are relevant:

“76. An order will also fail the necessity test if it is futile. An order will not necessarily be futile because material is available otherwise in cached form, from which it may be removed once the source page has been removed, or is available on web sites overseas. The mere fact that a search has revealed many thousands of "hits" does not necessarily mean that offending material has been readily located. It is necessary to refer to items which have been given priority in response to the search.” [My emphasis].

35. Another point made by counsel representing the media interests is that the owners of search engines such as Google are not represented in the proceedings, have not been provided with an opportunity to be heard and “notoriously” are resident in the United States and therefore the orders made would not be enforceable against them. Further, the publisher of item 24 has not been notified of the application. However, as Hulme J said in R v Debs at [24] (in respect of the Act):

“It is also inescapable that the Act empowers the Court to make orders without notice to all of those who might be affected by such orders. The opposite view would impossibly circumscribe the effect of the legislation.”

36. I acknowledge the force of the submissions made by the Intervenors, particularly in the context of the important observations of Basten JA in Fairfax v Ibrahim. However, in the present case, there is some evidence from which an inference is able to be drawn that removal of the most potentially prejudicial articles will have the desired effect. This arose from the taking down of the article entitled “How the Brothers for Life gang blew apart after killer ratted out on his brothers” (item 10). Within hours of that article being removed by the publisher of the Daily Telegraph, the solicitor for Jamil Qaumi undertook a Google search and that article no longer appeared other than on the solicitors’ website and then was only found when “BFL gang” or the exact title of the article was entered into the search engine. In other words, a search for “Jamil Qaumi” or any similar generic search did not lead to a link to that article. That suggests that the taking down of that article was not a futile exercise in terms of (again to adopt the terms used by counsel for the media) compliance with the spirit of the orders made to protect the identity of the informant witnesses.

37. One of the difficulties in making an assessment of whether the orders are necessary and likely to achieve their purpose or, to put it the other way, whether the orders would be futile, is the sheer volume of data floating about on the World Wide Web. For example Annexure A to Miss Christinson’s affidavit shows that a search of the name “Jamil Qaumi” on the Google search engine gave rise to 33,000 results in 0.19 of a second. A similar search of the Bing search engine attracted 11,500 results. To order the “take down” of some 25 articles would seem at first glance to be merely scratching at the surface.

38. Further, it is simply not known what the search result pages would look like after such articles were removed from the internet. For example, on page two of the Google search to which I have just referred, there is reference to an article in the Daily Mail published in the United Kingdom while on page four of that search there is an article entitled “The Afghan busted” published by the Fiji Times Online. The description of that article in the Google search commences with the words “at the age of 31 Farhad Qaumi has carved out a reputation as a player in Sydney’ gangland. This includes Qaumi’s two brothers Jamil and Mumtaz, who are both…” Neither of the publishers of those items are amenable to the jurisdiction of this Court and any order I made would, presumably, result in those items moving higher on the pages of results. For obvious reasons of practicality, only a limited number of pages were produced in the affidavit evidence. It is not known what appears on pages 7 and following of the Google search or page 7 and following of the Bing search. Presumably, if the 25 items are removed, other potentially offensive material will move “up the page” of results.

39. Having considered those difficulties in the evidence and taking into account the observations of Basten JA as to the technicalities of such matters and giving those matters some significant weight, I am inclined nevertheless to accept Ms Carroll’s submission that the removal of item 10 and the consequent searches of the three search engines demonstrate that such orders do have “some effect”. As Price J said in R v Perish at [44], “the inability of a court to remove all offending material does not necessarily lead to a conclusion that the provision of the relief sought would be futile.”

40. The decisions in R v Debs and R v Perish were considered by the Court of Appeal in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim. Counsel for the applicant in the present case submitted that the Court referred to those judgments but did not overrule them. Counsel for the media interests submitted that, while the cases were not specifically overruled, the observations of Basten JA cast real doubt over the currency of those decisions. What Basten JA said was this:

“66. Two judges conducting criminal trials in the Supreme Court of New South Wales have thought it appropriate to make suppression orders in relation to material available on the internet. In R v Perish [2011] NSWSC 1102 Price J dismissed an application to vacate orders limited to identifying specific articles and the web sites from which they were to be removed. The challenge was based on the futility of the order. His Honour noted at [44]:

The inability of a court to remove all offending material does not necessarily lead to a conclusion that the provision of the relief sought would be futile. In General Television ... the Victorian Court of Appeal (Warren CJ, Vincent and Kellam JJA) recast an internet order so that it was specifically directed at the applicant in that case and the website within its control notwithstanding that there was a deal of material which would otherwise be available on the internet.

67. Price J further stated at [55], after identifying the directions that he proposed to give to jurors at the trial:

Although I accept that the jury will abide by my directions I consider that I should do all that I can to assist them in making their task easier. Notwithstanding the age of the articles, their immediate accessibility on the applicants' websites by keying in the names of the accused causes, in my opinion, a real risk of prejudice to the accuseds' right to a fair trial."

68. In R v Debs [2011] NSWSC 1248 RS Hulme J made an order in terms not dissimilar to those in the present case. The information which was not to be published was, arguably, more specific than that identified in the present orders, but the order was in general terms that "there be no publication" of the offending information: at [52]. His Honour explained at [40]:

Thus, as I apprehend the operation of the Act, a non-publication order made in unqualified terms would immediately bind not only the media organisations listed above but also organisations such as the owners of Wikipedia, Google and the other search engines but they would commit no offence until notified of the order and guilty of conduct otherwise constituting contempt of court or a breach of s 16(1).

69. It is convenient to refer in this context to the terms of s 16 of the Suppression Orders Act. That provision states:

16 Contravention of order

A person commits an offence if the person engages in conduct that constitutes a contravention of a suppression order or non-publication order and is reckless as to whether the conduct constitutes a contravention of a suppression order or non-publication order.

Maximum penalty: 1,000 penalty units or imprisonment for 12 months, or both, for an individual or 5,000 penalty units for a body corporate.

(2) Conduct that constitutes an offence under this section may be punished as a contempt of court even though it could be punished as an offence.

(3) Conduct that constitutes an offence under this section may be punished as an offence even though it could be punished as a contempt of court.

(4) If conduct constitutes both an offence under this section and a contempt of court, the offender is not liable to be punished twice."

70. The assumption that there is no offence committed under s 16 unless the person has had the order brought to their attention is no doubt correct. However, it invites consideration as to how an internet content host or search engine operator in another country can properly be given notice of the order or be the subject of enforcement proceedings.”

41. The observations of Basten JA in Fairfax v Ibrahim are extremely important and raise many points concerning necessity and futility that must be considered before a court makes any order for suppression of material that exists on the internet. I have taken those matters into account but I do not accept that Basten JA intended to suggest that the decisions made by RS Hulme J in R v Debs or by Price J in R v Perish were wrong.

Futility, necessity and the conduct of criminal juries

42. That brings me back to the line of authorities concerning the ability of jurors to put aside prejudicial publicity and the assumption that they will obey directions and decide the case on the evidence adduced in the courtroom. In opposing the take down orders, the Intervenors place particular emphasis on this line of authorities. Of great significance in the present case is that the jury will be directed at the outset that they should not undertake their own research. Further, they (unless referring to pool) will be advised of the fact that s68C of the Jury Act 1977 (NSW) provides a criminal sanction for doing so.

43. I have referred in other judgments in this case, including the two other judgments to be published today, the very strong line of authority that the Court must act on the assumption that juror’s obey directions. As it was put by McHugh J in Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [21], “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”. There is no doubt that the overwhelming majority of jurors do comply with directions and decide the case on the evidence. However, there are some well-known examples of jurors conducting their own researches in spite of such direction.

44. A number of academic writers have questioned what was described as a “near heroic belief that jury directions can cure negative impressions formed about an accused” and suggested that “there is no evidence to suggest that this is anything other than judicial wishful thinking”: see Mirko Bagaric, “The community interest in bringing suspects to trial trumps the right to an impartial decision maker – at least in Victoria” (2010) 34(1) CriminalLawJournal 5 at 8; see also Burd and Horan (above at [9]), Jnana Gumbert, “Jurors Behaving Badly”, (2008) Law Society Journal; Jill Hunter Dorn Boniface and Don Thomson “What Jurors Search for & What They Don’t Get. Juror Comprehension & Obedience to Judicial Directions Against Juror Sleuthing”, University of New South Wales Pilot Jury Study, Law and Justice Foundation, (2010).

45. In R v K [2003] NSWCCA 431; 59 NSWLR 431, the Court of Criminal Appeal quashed a murder conviction when it emerged that jurors had conducted internet research that disclosed information about the accused’s criminal history including that he had previously been acquitted of murder. Further, a juror had taken himself on a “private view” of the place where the murder allegedly occurred. These actions were described by Wood CJ at CL at [76] as “clearly wrongful” in circumstances where the trial judge had directed the jury at the outset:

“I should also mention that there may have been publicity associated with the previous trial. You may even recognise that publicity or recognise the trial from that publicity when you hear various things in the course of this trial. What I should say is: Put that publicity out of your mind. It is utterly irrelevant, just as any publicity which this trial may attract in the course of its presentation is likewise irrelevant. The only thing which is relevant is what happens in this courtroom, the evidence which is called before you and the exhibits that are presented to you. That is the material upon the basis of which you must determine your verdict. So you should not speculate about any previous trial.”

46. In R v Skaf [2004] NSWCCA 37; 60 NSWLR 86, some members of the jury had attended the scene of the crime and conducted an experiment concerning the lighting conditions (see [235]). This resulted in the conviction for serious sexual assault offences being quashed.

47. In R v Benbrika [2009] VSC 142, a jury was explicitly directed that its members should not obtain information from the internet relevant to the trial. In spite of this direction, material found in the jury room (and subsequent examination of the foreperson) showed that the jury had accessed a number of articles from Wikipedia. The trial Judge refused an application to discharge the jury because the material was considered to be, in the overall context, relatively benign. It consisted of the definition of a number of words that were relevant to the charges. Further directions were given. Later, it was discovered that the jury had accessed and used a dictionary. Again, the trial Judge refused to discharge the jury noting that it was “faintly ridiculous” to “criticise lay people who go to a standard reference source for assistance on a question of fact such as the meaning of an ordinary English word” ([112]-[114]). While the trial Judge found the jury’s conduct did not constitute an irregularity in the trial, the case is an example of a juror either misunderstanding or deliberately breaching the trial Judge’s direction not to access the internet.

48. In Folbigg v R [2007] NSWCCA 371 a juror obtained personal information about the accused by searching the internet. This was in spite of repeated directions (set out at [53]) that the jury should not discuss the case with other persons or be influenced by extraneous materials [53]. The jury had also received directions at the beginning of the trial “that they were to confine their considerations to the evidence tendered in the trial”. While the internet searching was a clear breach of directions, the conviction was not quashed because the Court of Criminal Appeal concluded that the information so obtained did not lead to a miscarriage of justice [55].

49. In both R v K and R v Skaf, the Court suggested further directions that should be given by trial judges and also recommended an amendment to the Jury Act. Section 68C of the Jury Act now provides:

“68C Inquiries by juror about trial matters prohibited

(1) A juror for the trial of any criminal proceedings must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both.

(2) This section applies in respect of a juror from the time the juror is sworn in as a juror and until the juror, or the jury of which the juror is a member, is discharged by the court having conduct of the proceedings.

(3) This section does not prohibit a juror:

(a) from making an inquiry of the court, or of another member of the jury, in the proper exercise of his or her functions as a juror, or

(b) from making an inquiry authorised by the court.

(4) Anything done by a juror in contravention of a direction given to the jury by the judge in the criminal proceedings is not a proper exercise by the juror of his or her functions as a juror.

(5) For the purpose of this section,

"making an inquiry" includes the following:

(a) asking a question of any person,

(b) conducting any research, for example, by searching an electronic database for information (such as by using the Internet),

(c) viewing or inspecting any place or object,

(d) conducting an experiment,

(e) causing someone else to make an inquiry.”

50. The cases to which I have referred are examples of jurors either conducting their own research, disobeying directions or both. It should be said that these are four examples arising from the hundreds, if not thousands, of jury trials conducted in New South Wales and Victoria. I have no doubt that there are other, less publicised examples. For example, I am aware that a jury was discharged in the District Court sitting in the Downing Centre in the last two weeks because a juror, in spite of clear direction, accessed information about the location of the alleged crime by using the internet. [7] Nevertheless, in view of the number of jury trials conducted and the small number of examples of jury misbehaviour, it can properly be assumed that the overwhelming majority of jurors approach their task in accordance with their oath, the law and the directions provided to them by the trial Judge.

    7. The case is again to go to trial, so I should not refer to the case other than by the initials of the accused: R v JCF, unreported District Court of New South Wales (Huggett DCJ) 16 March 2016.

51. The pilot study conducted by Professor Hunter et al[8] provides some support for this proposition although the sample size is so small that it is difficult to take too much from the study. [9] However, a troubling aspect of the study was that that 5 of the 39 jurors who took part in the survey believed it was “very acceptable” for a juror to conduct their own research in spite of direction. [10]

    8. See above at [44].

    9. A point acknowledged by the authors at 8.

    10. See page 11 of the report.

52. I mention this study in passing and I have not taken it into account in any meaningful way in reaching a conclusion.

53. I find myself in agreement with the observations made by Price J in R v Perish at [54]-[56]:

“54. It is well recognised that a trial judge should always do what he or she can in order to protect the rights of the accused to a fair trial and thereby ensure the integrity of its process. The majority in Mokbel observed at [73]:

‘This confidence in the corporate integrity of juries, however, does not mean that the law should abandon its traditional role of protecting them from events which put this integrity to the test.’

55. Although I accept that the jury will abide by my directions I consider that I should do all that I can to assist them in making their task easier. Notwithstanding the age of the articles, their immediate accessibility on the applicants' websites by keying in the names of the accused causes, in my opinion, a real risk of prejudice to the accuseds' right to a fair trial.

56. The internet orders and directions to the Registrar are aimed at ensuring, as best I can, that the fundamental prescript of the right of the accused to a fair trial is preserved. I conclude that it is necessary to make the orders.”

54. Having referred to those comments in R v Debs, RS Hulme J went on to say at [35]:

“35. I accept that the majority of the Court in Mokbel [2010] VSCA 51 seemed to think that a juror would not deliberately breach a judge's instruction not to search the internet - see at [94]. However, I do not share their Honour's view with such confidence that I am persuaded that on that account the orders sought in this case are unnecessary. Rather in my capacity as a tribunal of fact do I take the view that there is an appreciable risk. When that risk is combined with the desirability of protecting jurors from events which put this integrity to the test and with the importance fo ensuring that the Accused has a fair trial, there is much to be said for the view that the orders along the lines of those sought should be made. Of course there are other considerations.”

55. It was based on those kinds of considerations that both Price J in R v Perish and RS Hulme J in R v Debs found that it was necessary to make the take down orders therein sought. I have reached the same conclusion in respect of the more troubling articles that fall into the three categories that I have identified above in paragraph [25].

Practical considerations

56. Ms Mullins’ affidavit also refers to a number of practical considerations:

“Take down Process

21. I am instructed by the Intervener’s website department and believe that that due to the requirements of the Intervener’s online publishing programme, the process of taking down articles from its website and later re-publishing them requires a considerable amount of time and disproportionate amount of cost.

22. I am further instructed by them taking that down each article deletes the electronic file in its entirety.

23. To restore the articles after the restriction period has ended, the Intervener would need to manually re-enter the text of the articles and re-build each article including layout and captions, and sourcing the same images from our extensive photography database. This is would be impractical and uncommercial for the Intervener.

24. In practical terms, the outcome would be that the Intervener will not republish the articles after they are taken down. The articles from The Daily Telegraph, The Australian and Perth Now would be censored on a permanent basis. A substantial part of the news coverage of this trial would be deleted from the archives of these newspapers of record.”

57. I accept the possibility that removal of the articles may mean that the publisher elects, for business and economic reasons, not to re-publish the articles at the conclusion of the trial. However, given that the items have been online for some months or years and given that the media will be able, in due course, to report fully on the evidence in, and outcome of, the trial itself, I do not consider this to be a significant interference with open justice or the public’s “right to know”.

Conclusion

58. For the foregoing reasons, in spite of the helpful and cogent arguments advanced by Mr Lewis and the contents of Ms Mullins affidavit, I have concluded that it is necessary to make orders of the kind sought. However, there was significant debate in relation to the precise form of the orders sought. Having taken on board the criticisms of the proposed orders made by counsel for the Intervenors, the applicant’s lawyers submitted a document entitled proposed orders in relation to the take down application on behalf of Jamil Qaumi [11] (MFI 96). Those orders, as was pointed out by counsel for the media, were still deficient in that they were not directed to any particular publisher.

    11. MFI 96

59. In the course of argument, and in formulating those revised proposed orders, the lawyers for Jamil Qaumi accepted that at least one of the articles in the original annexure A emanated from overseas publishers (item 13) and the application in that regard was not pressed.

60. It is necessary to formulate the appropriate orders and to direct them to particular publishers.

61. For the sake of clarity, it is my intention to order that particular categories of articles be “taken down” from the internet. Those categories are:

1. Articles which make reference to Farhad and Mumtaz Qaumi (or either of them) being charged with the Joseph Antoun murder;

2. The article that refers to Mohammad Zarshoy’s criminal history; and

3. An article which refers to the fact that Farhad Qaumi had been accused of committing previous killings.

62. Once this judgment is published I will provide the parties within a short period of time in which to confirm that the orders I propose, and the articles identified therein, reflect the intentions expressed in the last paragraph and that there are no other technical difficulties with the orders. Subject to that, I make the following orders:

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.

**********

Endnotes

Amendments

13 December 2016 - Witness M name redacted in Decision field of coversheet

13 December 2016 - Witness M name is redacted in Daily Telegraph article.

Decision last updated: 13 December 2016