Regina (C'Wealth) v Baladjam [No 44]

[2008] NSWSC 1463

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 44] [2008] NSWSC 1463
HEARING DATE(S):	08/09/08
JUDGMENT DATE :	8 September 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	1. An order that until further order Channel 7 be restrained from broadcsting the news item concerning the accused advertised by Channel 7 on Sunday 7 September 2008 as being a news item that would be broadcast on Channel 7 evening news bulletin on Monday, 8 September 2008 at 6pm. 2. Stand over motion until 11.30am on Tuesday, 9 September 2008. 3 Liberty to apply. 4 Costs reserved.
CATCHWORDS:	CIVIL LAW - Injunction to restrain media from publishing a broadcast on its national news program - Contempt of Court - Principles applicable to restrain threatened contempt of Court.
CASES CITED:	Ex Parte Bread Manufacturers; Re Truth & Sportsmen Limited (1937) 37 SR NSW 242 at 248 Civil Aviation Authority v Australian Broadcasting Corporation NSWCA 51 9 June 1994 Waterhouse & Anor v Australian Broadcasting Corporation (1986) 6 NSWLR at 733 DPP v Francis & Anor [2006] A Crim R 162 at 134
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 44] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR Regina (C'Wealth) 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. Donnell; Ms S McNaughton - Crown D. R. Sibtain - Channel 7 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; E 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; - Accused Touma
SOLICITORS:	Commonwealth DPP 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 Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma

- 1 -

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

WHEALY J

SYDNEY: MONDAY 8 September 2008

2007/2397001 - Regina v Omar BALADJAM [No 44]
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 - Injunction - Application to restrain Channel 7 from publishing a broadcast item on its National News program – Contempt of Court - Principles applicable

1 HIS HONOUR: This is the hearing of a notice of motion that has yet to be filed, but which I am told can be sent through in electronic form at short notice. The gist of the order that is sought, if I may be forgiven for not referring to it in precise terms, is, that until further order Channel 7 be restrained from broadcasting a particular news item on its news bulletin show tonight, that item being one that has been advertised or promoted on one or perhaps more occasions prior to today. The broadcast relates essentially, in part, to a trial of nine men who are charged with an offence of conspiring to do acts in preparation for a terrorist act or acts. There is no need for me to identify the men, but they are the accused in the present trial. My role is that of the trial judge.

2 The trial is proper is to take place in the Supreme Court of New South Wales at Parramatta in the new courthouse there. The proposal is that a jury is to be empanelled on 27 October 2008. The material in support of the present application comprises firstly, two affidavits. They are the affidavits of David John Gawel and Juliana Crofts. Each of those affidavits attempts to describe, no doubt to the best of the recollection of each of the deponents, promotional advertisements they have each seen relating to the proposed news bulletin.

3 An issue has arisen as to whether the promotional material does contain a statement of the kind appearing in paragraph 9 of the affidavit of David John Gawel, and in paragraph 5 of the affidavit of Juliana Crofts. That issue might be described, in a sense, as a preliminary issue and it is sought to be answered in the affidavit of Richard Michael Keegan which has been sworn 8 September 2008. Mr Keegan is a solicitor employed by Mallesons who are the solicitors for the 7 Network. Mr Keegan, subject to the supervision of a senior partner, has the carriage of the matter. He has brought to court a DVD containing promotional material. He has set out in his affidavit the actual contents of that promotional material, being the material we saw on the display of the DVD. Clearly enough there is a preliminary issue as to whether the words appearing in the affidavit of Juliana Crofts and Detective Inspector Gawel were in fact part of any promotion.

4 I do not propose to resolve that issue. I do not see how I can in the short time available to me this afternoon. It is simply an issue that remains at large. It seems to me that a practical way that I could resolve the difficult issues that have arisen on this application, where there is a clash between the need to ensure a fair trial for people charged with very serious offences on the one hand, and the need for the media to promote proper debate in the public arena of matters of public interest, is to view the programme. Mr Sibtain has very fairly and candidly pointed out that that programme is however, not available to be scrutinised on a DVD at the present time. In these circumstances, he has provided the Court with a script which I understand to be, as best it can be, the script that would be likely to accompany the footage that would be shown on the news item. One can discern, I think, from the contents of Exhibit 3, the script document, something of the footage that is likely to be involved. It is not possible, however, to obtain an entirely clear picture of the images that would accompany the script. So I have to do the best I can with the script document itself.

5 Mr Sibtain suggested that there might be some possibility of negotiation between the parties to edit the script in some way, but I think the better view is to take the issue head on, given the urgency of the application and the fact that it is now 25 to five. If I make this judgment very much longer, I will effectively have destroyed any practical change of acceding to the wishes of the plaintiffs. So I will be brief, and I trust that I will be excused for not detailing at great length the legal principles that are applicable to the present contest.

6 Those principles, however, appear to be reasonably clearly understood as between the parties. They have been stated in different ways at different times. Perhaps it is convenient to go back to earlier times to see how those principles have been stated. Sir Frederick Jordan, in Ex Parté Bread Manufacturers; Re Truth & Sportsmen Limited (1937) 37 SR New South Wales 242 at 248 said:

“It is convenient in the first instance to consider the general principles which are applicable in such a case as the present. It is a well established general rule that any publication which has a tendency to interfere with the administration of justice by preventing the fair trial of any proceeding in a Court of justice is a contempt of Court.”

7 Sir Frederick also at page 249 pointed to what might be described as the other side of the coin. There the Chief Justice said:

“But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested and if, in the course of the ventilation of a question of public concern, a matter is published which may prejudice a party in the conduct of a lawsuit, it does not follow that a contempt has been committed.”

8 This clash between two these important principles has continued to resonate throughout the common law in New South Wales since 1937. In the brief time available to me I have picked up a reasonably contemporaneous reference to it in the decision of New South Wales Court of Appeal in Civil Aviation Authority v Australian Broadcasting Corporation. In that case, where by majority the Court of Appeal refused to make a declaration as to the existence of a contempt arising out of a Radio National programme on the ABC, there is a useful statement of general principle. For example, Kirby P said at 549 between lines C and F:

“The test of contempt has been stated in many decisions, relevantly, the words impugned must have a tendency to interfere in the due administration of justice. The test has been developed over time to express the balance which is struck in our community between the competing interests and protecting the due administration of justice and upholding the ordinary right to free speech.”

9 His Honour went on to note that the balancing of free speech and due process involves “a delicate task”. The way his Honour put it was to say the intrusion of contempt law into freedom of expression is justified only where a real risk to the administration of justice is apparent. Similar statements of principle were adopted both by Handley and Sheller JA, although their honours differed as to the outcome of those principles in the particular case.

10 Another decision which I have also found useful is the decision of Waterhouse & Anor v Australian Broadcasting Corporation (1986) 6 NSWLR at 733. This is the decision of the Court of Appeal following upon a decision by Young J in the Equity Court which is reported in the same volume at page 716. In that case all three members of the Court, Glass JA, Mahoney JA and Samuels JA were in agreement. Mahoney JA however said this at 737 line D:

“It is at the heart of any system of justice that a person shall not be wrongly convicted. For this purpose the law recognises and maintains the right of every person charged to have a trial which is as fair as the circumstances will allow. Interference with the right of a fair trial may take different forms. Without attempting to state them exhaustively, three forms of interference are relevant in this case. Statements may be made which denigrate the credit of or create public prejudice against the person against whom charges are pending; statements may be made relevant to matters which are relevant to the guilt or innocence of the accused and have the required tendency to produce decisions on them otherwise than upon the evidence given at the trial; and it may be said that the accused is guilty of the offences charged."

11 There are no doubt other authorities, some of them have been referred to in argument. One final reference, however, is to the decision of single judge, Bleby J, in the Supreme Court of South Australia in Director of Public Prosecutions v Francis & Anor (2006) A Crim R 162 at 134. His Honour applies the very principles to which I have made reference and in the course of so doing his Honour said:

“Contempt involving publication in the media of matters concerning impending litigation, be it civil or criminal, give rise to the need to resolve the tension between two fundamental concepts upon which a democratic society is founded: The protection of the integrity of the administration of justice with outside interference, with the protection of freedom of expression, especially on matters of public concern and interest.”

12 His Honour in particular referred to the need to examine whether a particular trial was to be conducted by a judge alone or by a judge and jury. His Honour also thought it was important to examine the concept of delay between the publication and the trial. This, he thought, would be a significant factor in deciding the level of risk of prejudice to a fair trial.

13 Mr Sibtain and Mr Dawson, each of whom made submissions on this matter for the defendant, have stressed that the Court should act cautiously in a situation where it is asked to restrain a programme that is about to go to air. Mr Dawson, for example, pointed correctly I think to the fact that there can be a difference between a case where an alleged contempt has occurred and where there is an opportunity after the event to determine whether that is so. That is one situation. The other situation is, as here, where what is involved is a threatened contempt and, no doubt as Mr Sibtain's submissions showed, a situation where one cannot be entirely sure as to the precise nature of the content of the programme.

14 Another area of possible caution arising here is that the trial is not underway at the present time, although it is very close. A similar reason for caution, I suppose, is the fact that a jury has not been selected, although again for the reasons I have given, that prospect is fairly close. One of the submissions made by Mr Sibtain related to the fact that juries generally obey directions. That is certainly a view I take. I think that juries do obey directions of a trial judge and so a situation that can arise is during a trial an article may be published in a newspaper. It may have been seen by jurors or it may not have been, but rather than discharge the jury, it is common for a judge to say to the jurors that if they have read something about the matter in the media, that they are to put it out of their mind altogether and they are to simply focus upon the evidence given in the trial. Certainly as a trial judge that is the general approach I would take.

15 But of course there are articles and there are articles, and it is impossible to always find that the situation can be dealt with by directions. There will be the extreme case where that is perhaps not possible. But in general I do accept the submission that juries, properly instructed, pay heed to those directions. Juries are robust and are capable of putting out of their mind to a degree matters that might otherwise be prejudicial to an accused person during a criminal trial.

16 There is a difference, however, between professional judicial officers and members of a lay jury. Judges are trained to act and to think in a judicial manner. This is not to say that judges are not susceptible to prejudicial material, but it is part of their professional life, and part of their professional training, that they are able, in the main, to completely divorce themselves from prejudicial material and to remain objective in the discharge of their judicial duties. Members of the public who are jurors are not so trained. I think it is for that reason that all the authorities note the difference between the publication or likely or threatened publication of an article that may contain prejudicial material and its impact on a judicial officer on the one hand, and the impact that the same article might have on members of the public who are selected to act as the jury, and hence become the tribunal of fact.

17 Let me leave to one side now those matters of general principle and application and look to the article itself. I call it the article, but of course it is in reality a script. The problem with it, I think, I indicated during argument, is that while on the one hand I accept that it has as its genesis a legitimate debate between the desirability of providing a high level of legal aid to fund criminal trials, and the views of others who wonder whether that is money that should be spent in that way, this particular article is to my mind so infected with error, and error of a egregious kind, that the genuine debate becomes submerged in the context of those errors.

18 I do not propose in this judgment to go into any considerable detail about the way in which the article differs from the case that is to be presented by the Crown. I will simply identify the passages where that may be said to be so. The central paragraph is the fourth paragraph which sets out, really, the nature of the Crown allegation against the accused. It is sufficient to say that this is simply not to be the Crown case at all. And it is in fact so far removed from the Crown case as to make it a gross distortion of the evidence that will be led before the jury. So, to my mind, it offends the first and second principles that Mahoney J referred to in the decision of Waterhouse v Australian Broadcasting Commission.

19 Secondly, the allegation appearing in the first part of the seventh paragraph is a considerable distortion of the Crown case, and in the remaining part of it, it will simply not be part of the Crown case at all. Once again I think that the presence of those two statements in that paragraph will have the likely impact of infecting the entire article, if I may continue to describe it in that way. When one then proceeds to a statement by a civilian which appears in the article as to what he understands the case to be about, once again I would respectfully submit that that is completely at odds with the case that is going to be presented in the trial against these men. Once again, it is so capable of prejudicing potential jurors, and so far divorced from the reality of the evidence that is to be led, that it can be said to be an infringement in the two respects mentioned by Mahoney J.

20 So in short, whether the test is to decide whether there is a real and definite tendency to prejudice, or whether it is that the proposed programme will comprise a real and substantial prejudice to the administration of justice focusing on this trial, I think the answer must be the same. It is my firm conviction that the programme, if the script of it be in accordance with Exhibit 3, will have that capacity to substantially prejudice this trial. I am fortified in that conclusion by the fact that it is only a matter of a few weeks now till that jury will be empanelled. I consider that it is much too close to the trial for this particular article, once again if I may call it that, much too close for this particular article to be lingering in the minds of the potential jurors. With that in their mind, and well and truly in their mind, I find it difficult to see that as the trial judge I could give any directions to the jury that would remove the prejudice that would have been likely to have been caused. Indeed, by giving them directions, I think it might well be the case that I would simply be reinforcing in their minds something that they had seen and heard only a matter of weeks earlier, and which might have the effect of making the situation even worse. So it is one of those rare cases where I think that directions would not be sufficient to undo the prejudice that I fear and find would be caused by the programme proceeding in the form I understand it was intended to take.

21 In those circumstances I am prepared to make an order--

22 (Mr Sibtain addressed His Honour in relation to an undertaking regarding non-publication of paragraphs 4, 7 and 10. Further submissions ensued.)

23 HIS HONOUR: I think that in view of the hour and the time of day, I think that I should make a restraining order on a temporary basis. It will be until further order. That will not stop you, Mr Sibtain, or your clients from reformatting a programme if you want to discuss with the Crown what could or could not be put in it. And in those circumstances it might be that something could, by agreement, be worked out. But whether it can or not I think I have to back off from that position and I would prefer to simply say that I will make the order in the terms that I am asked to make.

24 (A discussion ensued as to providing His Honour, in chambers, with a hard copy of the orders sought. The following orders were made in chambers:)

RELIEF CLAIMED:

25 1. An order that until further order Channel 7 be restrained from broadcasting the news item concerning the accused advertised by Channel 7 on Sunday 7 September 2008 as being a news item that would be broadcast on channel 7 evening news bulletin on Monday, 8 September 2008 at 6pm.

2. Stand over until 11.30am on Tuesday, 9 September 2008.

3. Liberty to apply.

4. Reserve costs.

26 HIS HONOUR: I make orders 1, 2, 3 and 4.

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