R v Sinai (No 2)

[2021] NSWSC 777

Supreme Court

New South Wales

Medium Neutral Citation:	R v Sinai (No 2) [2021] NSWSC 777
Hearing dates:	1 June 2021
Decision date:	01 June 2021
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Application for non-publication of past media publicity dismissed
Catchwords:	CRIMINAL PROCEDURE – Suppression and non-publication orders – existing material online said to be prejudicial to the accused – content of about 100 internet articles unclear – identified articles are old – orders futile and not necessary – application for take down orders dismissed
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW), s 7
Cases Cited:	Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 Nationwide News Pty Limited v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97
Category:	Procedural rulings
Parties:	Regina Abraham Sinai
Representation:	Counsel: Mr S Hughes (Crown) Mr P Lange (Accused) Solicitors: Solicitor for Public Prosecutions Kings Law Group
File Number(s):	2019/169513

Judgment

1. HIS HONOUR: This is an application for non-publication orders in respect of past media publicity that is said to be adverse to the accused’s interest in receiving a fair trial.

2. A trial in this matter commenced with the empanelment of a jury on Monday 3 May 2021. The prosecutor’s opening address was delivered on 4 May and the evidence in the Crown case proceeded. On 6 May, senior counsel for the accused announced that her instructions had been withdrawn. On 7 May, the jury were discharged because the delay in retaining alternative counsel was too great to justify their retention.

3. I have been informed that Mr M Tedeschi QC has accepted the brief. The trial will recommence early in the week of Monday 7 June 2021.

4. It will suffice for the purpose of the present issue to say that the matter concerns the shooting murder of Mr Ho Ledinh when he was sitting outside a café in Bankstown at about 3.35pm on 23 January 2018. The Crown case is that the shooter was Arthur Kelekolio (who has pleaded guilty to the murder) and that the present accused is complicit by virtue of his participation in a joint criminal enterprise.

Application for take down order, alternatively non-publication orders

5. On Monday 31 May 2021, Mr A Reslan, the accused’s solicitor, moved on a Notice of Motion by which a takedown order was sought pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) in respect of “all online publications pertaining to the accused”. In the alternative, non-publication orders were sought in respect of references in past media publicity to six matters. The application was supported by an affidavit of Mr Charlie Faker, a paralegal in Mr Reslan’s firm.

6. The matters for which non-publication orders were sought included references to the accused as an “enforcer” and a “standover man”; that he was the subject of a Firearms Prohibition Order (FPO); that he was linked to outlaw motorcycle clubs or bikie gangs; that he was hired by others to commit the murder, or there were others involved in the murder who have not been charged; and that he was in custody or bail refused. The final matter concerned images of the accused in police custody and in handcuffs. These were all matters evident in news articles or videos annexed to Mr Faker’s affidavit. These publications were made either at the time of the accused’s arrest on 30 May 2019 or following the prosecutor’s opening address in the trial a few weeks ago.

7. The hearing of the application was deferred until 2.00pm on Tuesday 1 June 2021 to allow the media to be notified of the application. As a result, Mr Lewis of counsel appeared to represent the interests of Nationwide News Pty Limited, Fairfax Media Publications Pty Limited and the Australian Broadcasting Corporation. He indicated the application was opposed. An affidavit of Ms Larina Alick, an in-house solicitor with Nine, the media group that includes the publisher of the Sydney Morning Herald newspaper and its associated website, dated 1 June 2021 was read and a helpful outline of submissions was provided.

8. Mr Lange of counsel then appeared for the accused. He conceded from the outset that the orders sought in the notice of motion could not and would not be made by the Court and withdrew the application in those respects. He did however press the application for a non-publication order in respect of the two matters discussed below.

The subject matter of the proposed non-publication orders

9. Annexure A, video A3, to Mr Faker’s affidavit is a video which accompanied an online text news report in the Sydney Morning Herald of 30 May 2019, the day of the accused’s arrest. The video includes police announcing their presence outside the accused’s home, saying twice, “Police FPO”. The police are seen to enter and later depart with the accused under arrest.

10. Annexure E is an online news article from ABC News dated 30 May 2019. It includes a report of the NSW Homicide Squad Commander Scott Cook having said police believed “some of those responsible for the murder allegedly have links to bikie gangs”.

Submissions

11. The material depicting the police announcing "FPO", twice, before entering in what Mr Lange described as a "fairly emphatic manner", was said to give rise to two aspects of potential prejudice to the accused. The first is that the accused was the subject of a firearm prohibition order. The second is that the manner of entry made by police into the accused's home would give rise to jurors thinking "there was a reason for that search to take place wholly unconnected with these proceedings". [1]

    1. Tcpt 1.6.21 at pp 11.23-12.29

12. Additionally, the Homicide Squad Commander’s statement that the police believed that persons responsible for the murder allegedly had links to bikie gangs was said to have tainted the accused with such an association.

Consideration

13. The two matters raised in this application are hardly at the most egregious level of prejudice that might be caused by pre-trial media publicity concerning an accused. The reference to an “FPO” in the video of the police arrest of the accused is not even clearly audible according to Ms Alick (and I agree with that assessment). It would take quite a knowledgeable juror with good hearing, or multiple replaying, to pick up the acronym and understand its ramifications. The manner by which police entered the accused’s home and arrested him on a charge relating to an execution-style murder is nothing out of the ordinary. The reference to unnamed persons responsible for the murder having links to bikie gangs is vague and would involve considerable speculation before it would rise to the level of prejudicial.

14. In determining an application for a suppression or non-publication order it is mandatory for consideration to be given to the fact “that a primary objective of the administration of justice is to safeguard the public interest in open justice”: s 6 of the Act. That is not the hurdle it otherwise might be where the subject matter is pre-trial publicity as opposed to the prohibition of publication of something said or done in open court.

15. The grounds upon which such orders may be made are those listed in s 8. It was not stated by counsel for the accused, but counsel for the media appears to be correct in assuming the ground relied upon here was that in s 8(1)(a), that “the order is necessary to prevent prejudice to the proper administration of justice”.

16. The proposed non-publication order in respect of the matters referred to is not “necessary”. It is not reasonably appropriate and adapted to achieve its perceived purpose: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [51]. Moreover, it would appear to be futile in that it is unclear how much material of a similar type is also available on the internet. Mr Faker’s affidavit includes that a Google search using the accused’s name returned almost 6 million results, although only about 100 of them appeared to relate to him directly. However, annexed to the affidavit are only a handful.

17. Ms Alick confirmed Mr Faker’s information. She described a large number of the approximately 100 results directly relating to the accused as including news media videos and articles discussing his criminal proceedings. Examples of other publications on the internet where the same or similar material may be found are within and annexed to her affidavit.

18. There is good reason to be confident that jurors will understand and abide by a direction that they do not make inquiries and that they must decide the case based only upon the evidence presented in the trial. The two matters for which the non-publication order is sought were published over two years ago. They are hardly likely to be recalled by jurors now and would prompt a juror to go looking for such material. See Nationwide News Pty Limited v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97 at [89]-[90].

19. There are other shortcomings to the application identified in the submissions of Mr Lewis. They include that the proposed orders are not directed to anyone in particular. If they are confined to the authors of the publications annexed to Mr Faker’s affidavit, they would leave unconstrained anyone else who may have in the past, or will in the near future, publish the same material.

20. Another shortcoming is one that is curable (and it is noted that Mr Lange said that the proposed orders would need to be drafted in appropriate terms if the application were to succeed at least in a conceptual sense). This is that the orders are not expressed to apply in a particular place (cf s 11 of the Act) or be in force for any particular period (cf s 12 of the Act). That aspect may be put to one side.

Order

21. The application was dismissed for the foregoing reasons at the conclusion of Mr Lange’s submissions at the hearing on 1 June 2021.

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Endnote

Decision last updated: 29 June 2021