Regina (C'Wealth) v Baladjam

[2008] NSWSC 714

CITATION:	Regina (C'Wealth) v Baladjam & Ors [2008] NSWSC 714
HEARING DATE(S):	25/02/08, 26/02/08
JUDGMENT DATE :	28 February 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	1. Summons dismissed. 2. Application for a stay of proceedings dismissed. 3. Direction to media outlets made public to those outlets only.
CATCHWORDS:	CRIMINAL TRIAL - Quia timet injunction to prevent a threatened contempt of court - Protection of principles of open justice - Power to prevent publication of material prejudicial to a far trial - Necessity for suppression or non-publication orders relating to details of a criminal trial in another State - Exclusion of biased jurors from jury panel - Directions to jury - Integrity of jurors in obeying directions in a criminal trial
LEGISLATION CITED:	Commonwealth Criminal Code Act 1995 Supreme Court 1986 of Victoria
CASES CITED:	ABC v Lenah Game Meats Pty Limited 208 CLR 199; 2001 HCA 63 Re Consolidated Press Ex Parte Terrill (1937) SR NSW 255 Scott v Scott (1913) AC 417 at 477-8 Russell v Russell (1976) 134 CLR 495 at 520 John Fairfax & Sons Limited Police Tribunal (1986) 5 NSWLR 465 at 476 United Telecasters Sydney v Hardy (1991) 23 NSWLR 323 at 332 Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716 at 719-720 Herald & Weekly Times Pty Limited v A [2005] 169 A Crim R 299 Pickering v Liverpool Daily Post (1991) 2 AC 370 John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 Article in 2007 ALJ 743 at 752 Re Glennon (1992) 173 CLR 592 at 603 Kanaan v R [2006] NSWCCA 109 R v Lodhi [2007] NSWCCA 360
PARTIES:	Regina (C'Wealth) v Omar BALADJAM Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Weath) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR Regina (C'Weath) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA
FILE NUMBER(S):	SC 2007/2397001; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001
COUNSEL:	G. Bellew SC, C O'Donnell - C'Wealth Crown T. Blackburn SC; Ms P Sibtain - Media (By Leave) N. Williams SC; Dr K. Stern - ASIO and AFP M Buscombe SC; R Pontello - Accused Baladjam C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho D Dalton SC; T Ozen - Accused Elomar Ms D. Yehia; Ms S. Beckett - Accused Hasan G Scragg; D Carroll - Accused Jamal G Turnbull SC; A. Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Sharrouf S Hanley; P King - Accused Touma
SOLICITORS:	C'Wealth DPP Mallesons - Media Australian Government Solicitor Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho Nyman Gibson Stewart - Accused Elomar Legal Aid Commision - Accused Hasan Michael Doughty Solicitors - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: THURSDAY 28 February 2008

2007/2397001 - Regina v Bradley Umar Sariff BALADJAM
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2399001 - Regina v Mohamed Ali ELOMAR
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2452001 - Regina v Mohammed Omar JAMAL
2007/2454001 - Regina v Mirsad MULAHALILOVIC
2007/2396001 - Regina v Khaled SHARROUF
2007/2455001 - Regina v Mazen TOUMA

JUDGMENT - Application for an injunction and/or non-publication order; see transcript p 82

1 HIS HONOUR: Nine men, the accused, have been charged with conspiracy to do acts in preparation for, or planning, a terrorist act or acts, contrary to s 11.5 and 101.6 of the Commonwealth Criminal Code Act 1995. This is a very serious charge. The legislation provides for a maximum penalty of imprisonment for life for this category of offence.

Background

2 The pre-trial procedures relating to these charges commenced at the new Parramatta Court complex last Monday. As it happened, by coincidence, the trial of 12 other men accused of terrorism offences in Melbourne began before a judge and jury in Melbourne on 13 February 2008.

3 Last week two counsel for the accused in the present trial went to Melbourne and were granted leave to intervene in that trial for a limited purpose. An application was made before the Melbourne trial judge, Bongiorno J, seeking certain non-publication or suppression orders in relation to the reporting of certain material emanating, or likely to, from the Melbourne trial. Particularly, an order was sought to achieve the proposed suppression by requiring the media to refer to one of the Melbourne accused by a pseudonym, "C" or "Mr C"; secondly, an order was sought to prohibit the naming of the Sydney accused, either individually, or by any collective title or reference.

4 As I understand it, these orders were sought on the basis that, if granted, they would protect the Sydney accused from being tried by a Sydney jury, chosen from a population which had been exposed to media reports of the Victorian trial as it progressed. In particular, concern was expressed as to Sydney exposure to the Melbourne Crown's allegation against one of the accused, Benbrika, and to his and the other defendants' connection with the Sydney accused.

5 I should mention that senior counsel for the Crown in the Melbourne trial, Mr Maidment SC, had indicated early in the proceedings that for the purposes of the opening and throughout the trial generally, any mention of the Sydney accused in the Melbourne proceedings would be limited to their first names and no mention would be made of their surnames.

6 The intervention proceedings took place on 20 February 2008. Counsel heard on the application included Mr Bellew of senior counsel who represented the Sydney Crown, as I shall for convenience and clarity refer to it; and Dr McEvoy who appeared with leave for all the major media interests. As I understand it, all major local and national media interests were represented, except for Channel 10 and SBS.

7 On 21 February 2008 Bongiorno J refused the interveners' substantive application, but suppressed details about the application itself until further order. Essentially his Honour held that the time factors involved were unlikely to lead to prejudice and that, in any event, suitable directions could be given by the Sydney trial judge to protect the capacity of adverse publicity attaching to Mr Benbrika from impacting upon the jury's task.

8 Secondly, his Honour thought that the Sydney trial judge would be in a better position than he was, or would be, to ensure that the Sydney accused could be tried fairly; and in a better position to adjudicate from time to time upon any matter arising from media reports that might have a tendency to interfere with the fair trial of the Sydney accused.

The present proceedings

9 I turn now to the present proceedings. The summons in the present proceedings has been brought on behalf of all the Sydney accused. For the purposes of this argument it has been principally presented by Mr Waterstreet and Mr Lange of counsel. They are the counsel for the accused Khaled Cheikho, but as I have said, with the agreement of all parties they are representing all of the accused in relation to the relief sought in the summons. Mr Scragg of counsel appears in this trial with Mr Carroll for the accused Jamal. I have permitted Mr Scragg to make separate submissions for his clients in relation to the present matter. The defendants are John Fairfax Publications Pty Limited and Nationwide News Limited. Although not expressly named as defendants, Mr Blackburn SC sought leave to appear as well on behalf of a number of other major media interests and this situation was permitted. Mr Bellew SC made submissions on behalf of the Sydney Crown in relation to the relief sought in the summons.

10 The summons originally sought an injunction prohibiting publication of any of the following information which may be adduced during the evidence at the trial in Melbourne:

1. The names of the Sydney accused, whether in whole or in part;

2. Any collective reference to those accused and especially a reference to Sydney or any of its geographical parts;

3. Any reference to the activities of any of the accused charged in the Melbourne proceedings which take place in Sydney, as having taken place in Sydney or any of its geographical parts; or

4. Or any reference to any of the accused as coming from Sydney or any of the geographical parts.

11 By leave, an additional paragraph was permitted to the summons and it has become paragraph 5 of the relief sought. It is as follows:

5. Any reference to the accused Abdul Nacer Benbrika and any publication in New South Wales, except for the pseudonym "C" or "Mr C".

12 I should add in addition to the relief sought in the summons, Mr Scragg, on behalf of his client, sought a temporary stay of the trial, although this application was not generally favoured by the other accused. Essentially, Mr Scragg's application was based on the same material relied upon by the other accused in their application for an injunction.

13 Before going into the statement of the general nature of the Crown case against the accused and to the substantive arguments, it is necessary to make one further observation. The Melbourne intervention was sought on the basis of an express statutory power available in Victoria, but not in New South Wales. This is a reference to ss 18 and 19 of the Supreme Court Act 1986 of Victoria. Such an express power is not available in New South Wales. There is a clear line of authorities in New South Wales to which I will later make reference. These very considerably restrict the ability of the court to suppress or prohibit fair reporting of proceedings in a civil or criminal trial.

14 Mr Lange has candidly made it clear to this court that one of the principal reasons for issuing separate proceedings seeking an injunction is that the principles underlying the issue of such an injunction may, to a limited degree, be more favourable to his side than the application of the principles of open justice, to which I have made reference in circumstances, where a suppression order is sought.

The Crown case

15 The nature of the case against each of the accused is set out in the Crown case statement. This is a very long and detailed statement. It is inappropriate for me to do other than make brief mention of it in relation to the present proceedings. A decision is required urgently and this judgment must, in many respects, be relatively brief to cater for and take account of that urgency.

16 The nine accused are, as I have said, alleged to be parties to the conspiracy involved in the present charge. The prosecution case is that each of the conspirators considers himself to be a devout Muslim; each held certain beliefs in common relating to his interpretation of the Muslim faith. These common beliefs included the following:

“(a) Islam throughout the world has been under attack and there is a religious obligation to come to the defence of Islam and other Muslims;

(b) Jihad is the primary means by which this obligation should be fulfilled;

(c) A significant and legitimate aspect of fulfilment of this obligation is violent jihad. This involves the application of force and violence, including in certain circumstances, the killing of infidels (that is persons who do not have the same fundamental beliefs)."

17 As a consequence of the holding of these common beliefs, the Crown alleges that the conspirators entered into an agreement to obtain the capacity or ability to prepare to do a terrorist act. This involved equipping themselves with the knowledge, ability and means to prepare for, or plan, a terrorist act. In furtherance of the agreement, the Crown case is that the conspirators:

“(a) Obtained or attempted to obtain chemicals and other relevant materials which could be used directly and/or indirectly in the construction of an explosive device or devices; (punctuation)

(b) Obtained or attempted to obtain weaponry or ammunition;

(c) Possessed large amounts of extremist and instructional material."

18 The Crown also asserts that in undertaking their activities, the conspirators became aware that they were being monitored by the authorities. Despite this awareness, each of the accused continued with their activities in relation to the implementation or carrying out of the conspiracy. The accused, however, displayed a high level of planning to avoid detection. There is no need for me to detail some of the covert means allegedly adopted, but it included the acquisition and use of mobile telephones in false names and the use of false names when making enquiries about purchases and other matters relating to the furtherance of the alleged conspiracy.

19 The Crown case in the present trial will include evidence concerning a Melbourne man, Abdul Benbrika. He was, according to the Crown case, an Islamist who publicly declared his support for militant or violent jihad. As I have earlier indicated, he was one of those charged in Melbourne relating to his principal role there in the terrorist organisation, which is the subject of the Melbourne charges currently being heard.

20 It will be alleged in the Sydney trial that Benbrika communicated with certain of the accused. For example, in Sydney, this contact was often covert in nature, involving for example airline travel being booked in false names. Benbrika had regular contact with five or six of the Sydney accused and there will be evidence of conversations intercepted on his telephone service in which extremist words were used or mentioned.

21 It is not, however, alleged by Crown that Benbrika is or was a co-conspirator with the Sydney accused. It is not suggested by the Crown that the Sydney accused were members of the Melbourne terrorist organisation. It is not suggested that the Sydney accused played a part in the Melbourne organisation's plan to advance the cause of violent jihad by explosive or violent activity in that state. It is not suggested that there was any joint conspiracy between the two groups to engage in any joint criminal enterprise of violent jihad.

22 I should interrupt the narrative at this stage to say one of the pre-trial applications that will loom large, probably next week, relates to the conspiracy charge. The defence are united in their applications that the court should in effect bring to an end the conspiracy charge. They will argue that the Crown should be left to allege substantive charges of preparation for a terrorist act or acts against each accused. For the moment, however, this judgment is given on the basis that the present conspiracy charges will stand.

Prejudice against the accused

23 May I now turn to the Melbourne trial. As I have said, senior counsel for the Crown began the Crown opening some days ago and, as I understand it, it is still continuing. The opening has been substantially reported in Victoria, New South Wales and no doubt elsewhere in Australia. The crux of the present application relates to the potential prejudice alleged on behalf of the accused arising out of material opened by the Crown in Melbourne, especially against Benbrika, and generally against his Melbourne co-accused. The particular concern is with material, which will not be duplicated in the Sydney trial. As I have indicated, the Benbrika connection is an important part of the Crown case in the Sydney trial, but it is limited and, overall, relatively minor in its scope and extent.

24 Both Mr Waterstreet and Mr Scragg have provided me with written summaries of aspects of the Crown opening in Melbourne. These summaries highlight certain behaviour by Benbrika alleged in the Melbourne proceedings, which will not be part of the case against the Sydney accused. They include the following:

(a) Activities and communications between Benbrika and an undercover officer concerning explosive material;
(b) Statements of Benbrika and his co-accused concerning the desirability of blowing up public areas such as football grounds or train stations.

25 This very brief summary does not attempt to embrace all of the matters alleged against Mr Benbrika in the Melbourne proceedings. There are many more and they are fully set out in the written submissions which have been provided to me. In the main, these matters do not form any part of the material that is to be led by the Crown in the Sydney trial.

26 I have also been provided with newspaper reports, some of which carry rather sensational headlines, about the evidence that will be adduced in the Melbourne trial against Benbrika and his Melbourne associates.

27 Mr Waterstreet has extracted a correlation between the name "Benbrika" and "bombing" or "bombs". This emerges from a Google search and there were literally thousands of entries matching the two words.

28 The gravamen of the arguments before me focuses upon two matters principally. The first is the asserted temporal connection between the Sydney trial and the Melbourne proceedings. It has been argued that although the Sydney trial may not start for some time, there is likely to be an area of overlap between the commencement of the Sydney trial and the conclusion of the Melbourne trial. Consequently, so the argument runs, there will be a potential for prejudice to taint members of the community who may form part of the jury pool. Thus will extend to the actual jury who are selected, if publication of damaging material about Mr Benbrika is to continue in the Sydney media unabated.

29 Secondly, it has been argued that although the more unfavourable and damaging publicity about Mr Benbrika is not to be introduced in the Sydney trial, Sydney readers or followers of the media generally will have had their minds poisoned about Mr Benbrika to such an extent that when the trial starts, the jury members will be likely to find the present accused guilty because of their association with such a repellent and dangerous person.

30 In response, the media argument queries whether there is any appropriate basis for the issue of an injunction at all. Mr Blackburn SC argues that there must be a legal or equitable basis to a right or rights, which are under threat before the issue of an injunction should be considered. (ABC v Lenah Game Meats Pty Limited) 208 CLR 199; 2001 HCA 63).

31 Secondly, he submitted that fair and accurate reporting of open court proceedings cannot constitute a contempt of court. (Re Consolidated Press Ex Parte Terrill (1937) SR NSW 255.

32 Thirdly, Mr Blackburn argued that the orders sought are not necessary to secure the administration of justice in the Sydney trial. In the same way it was submitted that binding authority makes it clear that in the absence of the statutory power, the court has no jurisdiction to make a non-publication order directed to persons generally, or to a particular class of person (such as the media) forbidding the publication of anything that happens in open court.

33 Mr Blackburn also submitted that, were the court minded to consider the making of a non-publication order and he conceded the possibility to do so existed in the present matter, it could only do so where there was material before the court from which it might reasonably conclude that it was really necessary to make the order, so as to secure the proper administration of justice in the proceedings before it. In any event, senior counsel argued that the order should not be made because it had not in fact been demonstrated they were really necessary to secure a fair trial for the accused. (Scott v Scott (1913) AC 417 at 477-8; Russell v Russell (1976) 134 CLR 495 at 520; John Fairfax & Sons Limited v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476).

34 Finally, Mr Blackburn provided the court with affidavit evidence from varying aspects of the media interests he is representing to demonstrate that it would be very difficult, if not impossible, to comply with orders of the kind sought. These affidavits raised factual considerations relating to the timing of media and press releases in different parts of Victoria and New South Wales and generally. As I said during argument, while these matters are no doubt capable of being regarded as relevant, practical considerations, they do not appear to me to bear upon the more fundamental question I have to decide; rather, they go to the content and extent of any of the orders that could or should be made if the court were to come to the conclusion that some type of protection were necessary in the present circumstances.

35 Mr Bellew's argument follows essentially the line of the matters that he had submitted before Bongiorno J in Melbourne. In particular, Mr Bellew stressed the important role that directions play throughout the process of a trial by jury. There is, of course, ample authority supporting that submission.

36 Mr Scragg's arguments essentially supported and developed, in perhaps more forceful terms, the arguments presented by both Mr Waterstreet and Mr Lange.

Resolution of the issues

37 I turn now to resolve the issues. There is a difficult preliminary argument. This relates to the question as to whether a quia timet injunction can issue in an anticipatory fashion to prevent a threatened contempt of court by a media outlet or outlets in circumstances such as the present. There is, of course, ample authority to the effect that the court may grant an injunction to enjoin publication of material, which is prejudicial to pending proceedings, but that, I would think, is not quite the same question. (United Telecasters Sydney v Hardy (1991) 23 NSWLR 323 at 332; Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716 at 719-720)

38 Even if it be accepted that the power claimed by Mr Lange does exist, it must be acknowledged, as I think he did, that its exercise will be a rare one and one to be exercised only in relatively circumscribed situations. (Herald and Weekly Times Pty Limited v A [2005] 160 A Crim R 299; Pickering v Liverpool Daily Post (1991) 2 AC 370). While the issue of an injunction to prevent a criminal contempt is not the imposition of a punishment for that contempt, it is nevertheless necessary to recall that such punishment is concerned with the protection of the public interests in the due administration of justice, including the vindication of the authorities of the courts. It is the undoubted position that, if there be a power to issue a quia timet injunction to restrain a threatened contempt of court in the present matter, it is of course not generally favoured by the law but, rather, is a power to be exercised sparingly.

39 My decision, as I have said, is required urgently in the present matter. As a consequence, rather than dwell upon this fairly difficult preliminary question, I have come to the conclusion that I should, without deciding it finally, make the assumption that I do have the power to grant the injunction that is sought. Secondly, I will make the assumption for the present moment that, despite the strictures on the issue of a suppression order presently applicable to this State, I also possess the power to make orders of the kind sought by the accused in the present matter. It may well be that the correct position is that no such orders can be made.

40 It is agreed on all sides that the accused in the present proceedings carry a heavy burden to restrict, by injunction, publication of material emerging in a criminal trial heard elsewhere in open Court. In addition, the principles of open justice would, in my opinion, have a reasonable level of application as part and parcel of the usual considerations involving the grant of an injunction, although those principles would not necessarily have an identical application as they do where a suppression or prohibition order is sought.

41 I have elsewhere summarised the authorities relating to the present law in this State related to those principles. (See Article in 2007 ALJ 743 at 752). One of the more recent cases on the point is the decision of the Court in John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344. The principles to be derived from that decision are to be found in the judgment of Spigelman CJ, with whom Handley JA and Campbell AJA agreed.

42 The principles may be summarised as follows:

”(1) Open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public is an essential quality of an Australian court of justice.

(2) Where the Court has an inherent or statutory jurisdiction to make a non-publication order, a test of necessity is ordinarily applied to the exercise of power to make such an order. A court can only depart from the fundamental rule that the administration of justice must take place in open Court where observance of the rule would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. An order of the Court prohibiting the publication of evidence is only valid where it is really necessary to secure the proper administration of justice in the proceedings before it.

(3) 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 and the protection of the relevant public interest.

(4) 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.

(5) It is well-established that the exceptions to the principles of open justice are few and strictly defined. It is now accepted that the Courts will not add to the list of exceptions but Parliament may do so, subject to any constitutional constraints."

43 Consequently the questions I propose to pose for my determination are these:

(a) Have the accused satisfied me that an injunction is necessary in the present circumstances to protect the public interest in the due administration of justice or to maintain the integrity of the judicial process?

(b) Have the accused satisfied me in the present circumstances as to the test of necessity so far as the suppression or non-publication orders are concerned?

44 After careful consideration, I have come to the conclusion that I must answer each of these questions in the negative.

45 The first matter to be considered is the nature of the orders sought. It is quite clear to me that these have been both deliberately and carefully framed to suggest a minimal disturbance to the principles of open justice. Despite the care with which they have been crafted, they do not, in my view, disguise the fact, however, that what is proposed is a relatively substantial interference with the first principle of open justice I have stated above.

46 Secondly, I do not consider that the temporal connection between the two trials warrants the conclusion argued for on behalf of the accused. There is, I think it is clear, a temporal connection. But it is rather more remote at this stage than has been argued. My own present estimate is that there may be anywhere between three and six months before a jury will be empanelled in the present trial. This estimate is based, so far as one can make an estimate, upon the nature of the interlocutory applications I have seen thus far, but, even in the course of this week, I have seen those increase, or at least potentially increase, in a reasonably significant way. Thus, experience suggests it may be many months before anything that could be described as a potentially critical situation might arise.

47 I positively reject any suggestion that the publications that have occurred in the New South Wales media since the Melbourne trial began in mid February have, or could have, in any realistic sense, already "indelibly poisoned" the minds of potential jurors. Many months hence, fifteen jurors will be selected from a pool of perhaps eight or nine hundred citizens. The pool itself will be selected from a vast population area. The possibility that any of these fifteen jurors will or would recall, or will or would have paid much heed to, the material that has been published thus far is quite remote.

48 Moreover, by the time the present trial commences with the empanelment of the jury, the potential jurors may be quite uninterested in the reporting that will have occurred between now and the time of empanelment. There will be many thousands of media reports on all sorts of topics to divert, stimulate or interest people between then and now.

49 It is true that recent reporting has painted Mr Benbrika in a most unfavourable light. But there will be many other people painted in an unfavourable light in the media between now and the time of the empanelment of the jury. This will happen on every page of the newspapers. It will happen in many segments of the television news. It will happen on the media that is available and accessible over the Internet.

50 It is quite possible - indeed somewhat likely - that the reporting itself will not be as intense as the months go by as it has been for the last couple of weeks. I do not suggest that there will not be a degree of reporting of the Melbourne trial as the weeks and months pass, but it is, I think, unlikely to be at the level generated by the reporting of the opening of the Crown case by Mr Maidment in Melbourne.

51 So often one sees a situation where a Crown opening attracts considerable attention on the front or leading pages of the newspapers but, as the trial progresses, it dwindles towards the back pages. The reporting becomes less intense; the headlines become less sensational, and the like. Of course, I cannot foresee exactly what will happen in the present matter. I have no reason to suppose otherwise than there will be a lessening of publicity.

52 Further, the surnames of the Sydney accused will not be mentioned in the reporting of the Melbourne trial. To my way of thinking, this is a significant factor in relation to the arguments that have been addressed to me.

53 I would also add that, in any event, members of the jury pool will, at the outset of the selection process, be invited to seek exclusion from the panel if they feel, for any reason, that they are biased or cannot bring an impartial mind to the task, if they were to be selected as a jury member. This invitation will, so far as I am concerned, be expressed in quite pejorative and precise terms, so as to make it abundantly clear that any person who has a biased opinion about terrorism generally, any person who has a biased opinion about these accused men, or about any aspect of the trial, including the evidence that will be adduced in the trial, has no role whatsoever to play in the jury process. I will not hesitate to exclude any such person from participation in the jury selection process. This is not to be critical of such persons, because bias is something we all experience, as we do with prejudice. But it will be taken into account in that way at the very commencement of the trial.

54 The next matter I come to consider is that I am conscious that, in England especially, suppression orders, or more accurately postponement orders, have issued from time to time in what are described often as back to back trials.

55 Now, the position in the present matter is, to my mind, quite different from those situations. First, I do not accept the submission that, having regard to the anticipated evidence, any of the Melbourne accused, including their spiritual leader can be regarded as an un-indicted co-conspirator.

56 Secondly, I have earlier set out, and I repeat, that no member of the Sydney accused is, on the Crown case, a member of the Melbourne organisation. It is not suggested by the Crown that any member of the Sydney accused played any part in the Melbourne organisation's plan to advance the cause of jihad by bombing or explosive activity in that State; finally, it is not suggested that there is any joint conspiracy between the two groups to engage in a joint criminal enterprise involving violent jihad.

57 Thirdly, the evidence to be led in this trial of an association between any of the Sydney accused and Mr Benbrika, or for that matter any of the other Melbourne accused, is, in the main, evidence of intercepted calls and of a few meetings. The relevance of the evidence is, as I presently understand it, germane especially to the mental element of the alleged offence and proof of the terrorist nature of the preparatory actions by some of the Sydney accused.

58 I should mention that there is to be a challenge to the Melbourne evidence, both as to its relevance and as to its prejudicial effect. In relation to the latter aspect, the Court will be asked to exclude the evidence. But, assuming the evidence is admitted, the jury will be aware of no more than the content and nature of the relevant conversations. The relevance and scope of such material, if admitted, will be limited to the conversations, the terms of those conversations, and the meetings themselves. It is true that the jury may become apprised of Mr Benbrika's extremist views arising from that material, but that is all that they will know from the evidence in this trial.

59 May I divert my remarks to make one further comment. I do not know what the issues will be in this trial. We are nowhere near counsel informing me what those issues are. For all I know, it may become a relevant issue in this trial that the accused, or some of them, will wish to distance themselves from Mr Benbrika and from his views. They may wish to paint him in a bad way. I mention this merely to indicate how hypothetical, in some way, the present arguments are when they are divorced from the real issues in the trial, or they may be when the real issues in the trial are known. It may be that those issues are not even known to counsel at this stage. This is of course, merely speculation on my part; and it plays no part in my reasoning. It is simply a comment.

60 In any event, to return to the evidence itself, if it be admitted in the Sydney trial, this leads me to the final matter that persuades me that the relief should not be granted. This is the issue of the giving of directions to the jury. The experience of the Court has been that, even in the absence of specific directions, jurors bring a special integrity to their task and have a basic appreciation that they are concerned only with the evidence in the trial and not with other matters, even where those other matters may relate to publication of material in the media.

61 Secondly, it is the further experience of the Court that juries in the main do pay heed to specific directions given by the trial Judge. There is a great deal of authority now, which provides principal support for the anecdotal experience of individual judges. (Re: Glennon (1992) 173 CLR 592 at 603; Kanaan v R [2006] NSWCCA 109; John Fairfax Publications v District Court at 103; R v Lodhi [2007] NSWCCA 360 It is, of course, far too early to say what directions should be given to the jury in this matter, or when such directions should be given, especially in relation to publication that has occurred to date, or for that matter to publications which may occur between this date and the commencement of the Sydney trial, or after the trial has commenced. Throughout all these periods, the Court will be in a sound position to assess, reassess and monitor the situation from time to time over the next three to six months, or, indeed, if it be necessary, over the next twelve months.

62 For all these reasons, I propose to dismiss the summons and refuse the relief sought.

63 I do not consider that a temporary stay of proceedings is warranted, essentially for the same factual reasons. Having regard to the custodial situation of the accused, I think there is a very powerful incentive for the pre-trial submissions to proceed at, at least, a reasonable pace, in the expectation that the trial will commence and conclude within the time frame I have mentioned.

64 Although I propose to dismiss the summons, I would like, before I leave the matter, to make an exhortation to the media interests. I trust, in due course, Mr Blackburn will make these remarks available to his clients. It will be accepted, I imagine, that I have the outmost respect, as I must do, for the principles of open justice. Based on my own experience, I have also a high regard, generally speaking, for the capacity and ability of the media to report Court proceedings fairly and with integrity.

65 Although I have found against the plaintiffs in the present summons, it cannot be said that their concerns about the reporting of the Melbourne trial have been without foundation, or that they are baseless. A good example of those concerns is to be seen in the juxta position of the reporting of these proceedings and the Melbourne trial on the same page of the Daily Telegraph on Tuesday, February 26, 2008. Of course, those two articles were written by two different reporters, and I do not suggest that those individual reporters were responsible for the decision to place the two articles side-by-side on the one page. Somebody was responsible, however, and, whichever way one looks at it, it was an unfortunate situation and one which should be avoided in the future.

66 It may have happened purely coincidentally, but if it were a deliberate decision, it could be reasonably argued that the editorial intention was to link the two trials as one in the minds of readers. This is not a desirable or proper situation. As I have said, it is many months before a jury will be empanelled in the present matter and that factor of present temporal disconnection deprives the juxta position of the two articles of the sting, which might otherwise apply in this situation. The position, however, would not necessarily be the same were that to happen at the time, or close to the time, when a jury was to be empanelled in the Sydney trial. Similarly, the position might well be otherwise if that were to happen during the trial.

67 What I would wish to say to the media interests is this: they are now very much on notice that there is a concern, both about the temporal and factual link of these two trials. As presently I understand the position, and for the reasons I have given, those links do not, in my view, warrant the interference of the Court at this stage.

68 The position might well be otherwise if less than responsible decisions were to be made about the reporting of the Melbourne trial as we come closer and closer to the time when a jury is to be empanelled in the present trial. This extends not only to questions such as where articles appear in the paper or in media items generally; it extends as well to their content, to the inclusion of photographs of the Melbourne accused, and to the naming of names.

69 I would urge the media, particularly as the weeks and months pass, to bear in mind the need for restraint, integrity and caution in all these matters. The trial I am about to undertake will be one of the longest and largest trials to have taken place in Sydney. I doubt whether it is the longest and largest, but it is certainly in that category. It would be an absolute tragedy, for many reasons I need not enumerate here, to see the trial fall over because of ill-intentioned, neglectful or careless media standards. I do not suggest that this is likely to happen. Indeed, I am confident that the media will heed my warnings, cautions and recommendations, and, if they do, it will not happen.

70 The orders I propose to make are:

(1) I dismiss the summons.

(2) I dismiss the application for a stay. I will suppress the details of the present application, the arguments that surrounded it and, for the moment, suppress publication of the decision itself.

(3) I will direct, however, that the decision be shown by Senior Counsel for the media outlets to the outlets that he represents, reminding them at the same time, however, that the decision itself is not to be published at this point in time. This is essentially because we are at the commencement of pre-trial applications and much of the evidence to which I have referred will be under challenge.

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