Sultani v The Queen; Shekeb v The Queen; Abdaly v The Queen; MD v The Queen; Baines v The Queen; Munshizada v The Queen; Hosseinishoja v The Queen

[2021] NSWCCA 301

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Sultani v R; Shekeb v R; Abdaly v R; MD v R; Baines v R; Munshizada v R; Hosseinishoja v R [2021] NSWCCA 301

Hearing dates:

3 December 2021

Date of orders:

3 December 2021

Decision date:

03 December 2021

Before:

Beech-Jones CJ at CL at [1]
Rothman J at [23]
Wilson J at [30]

Decision:

Application seeking orders under Court Suppression and Non-publication Orders Act 2010 refused

Catchwords:

PRACTICE AND PROCEDURE – suppression orders – application made to District Court in respect of publication of report of proceedings in ongoing Supreme Court proceedings – Supreme Court had previously declined same application – adjournment of appeal and interim suppression order sought - refused

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010

Criminal Appeal Act 1912

Category:

Principal judgment

Parties:

Abuzar Sultani (Applicant)
Mustafa Shekeb (Applicant)
Sayed Anush Abdaly (Applicant)
MD (Applicant)
Joshua Donald Baines (Applicant)
Siar Munshizada (Applicant)
Seyed Amirmohammad Hosseinishoja (Applicant)
Regina (Respondent)

Representation:

Counsel:
A Evers; A Ainsworth (Sultani)
P Lange (Shekeb, Abdaly, MD, Hosseinishoja)
D Carroll (Baines)
TF Woods (Munshizada)
E Balodis (Crown)

Solicitors:
John B Hajje & Associates (Sultani)
One Group Legal (Shekeb, Hosseinishoja))
Tohi Lawyers (Abdaly)
Zahr Partners (MD)
Kiki Kyriacou Lawyers (Baines)
Jamieson Criminal Law (Munshizada)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2016/358061, 2016/358107, 2016/358080, 2016/358130, 2016/381616, 2017/192038, 2016/381684, 2018/071596, 2016/381793, 2019/008169, 2016/381993, 2018/071566, 2018/189541, 2019/008267, 2017/149604, 2018/285015

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

30 November 2021

Before:

Zahra SC DCJ

File Number(s):

2016/358061, 2016/358107, 2016/358080, 2016/358130, 2016/381616, 2017/192038, 2016/381684, 2018/071596, 2016/381793, 2019/008169, 2016/381993, 2018/071566, 2018/189541, 2019/008267, 2017/149604, 2018/285015

EX TEMPORE Judgment

(Revised from transcript)

1. BEECH‑JONES CJ at CL: The Court has during the course of the afternoon dismissed, by consent, seven applications for leave to appeal in respect of the refusal by Zahra DCJ to make orders under the Court Suppression and Non-publication Orders Act 2010, the effect of which I will shortly outline.

2. The orders were made by consent following the earlier refusal by the Court to adjourn the applications or to make orders under s 10 of that Act for the period up to Monday, 6 December 2021, when certain applications will be made before Fagan J. These reasons constitute my reasons for refusing to adjourn the proceedings or to make orders under s 10.

3. The seven applicants are charged, along with others, on an indictment currently listed for trial in the District Court before Zahra DCJ to commence on 7 February 2022. The estimated length of the trial is three months.

4. Earlier this year, four of the original applicants, Messrs Sultani, Baines, Munshizada and Danishyar faced a number of trials on charges of murder before Fagan J. As I understand it, Mr Sultani pleaded guilty to at least some of those charges. Those trials ran back to back. To ensure that they could be conducted fairly, his Honour made non‑publication orders operating over all of those trials.

5. On 26 August 2021, his Honour advised the Crown, Messrs Sultani, Baines, Munshizada and Danishyar that the non-publication orders would be lifted once the sentence proceedings against them commence, which are, as I have indicated, due to commence on Monday, 6 December 2021. His Honour provided reasons for taking that course, which were set out in the transcript. None of the parties to those proceedings sought to appeal his Honour’s orders.

6. His Honour determined, in effect, that it was no longer “necessary” for the non-publication orders to remain once the sentence proceedings commence bearing in mind the undoubted interest in open justice in the public being aware of the facts and circumstances surrounding convictions on serious criminal charges.

7. As I have said, none of the parties to those proceedings sought to appeal his Honour’s orders or renew any application for his Honour to revisit those orders. Instead, the applicants made an application to Zahra DCJ for certain forms of order, the effect of which it is necessary to describe.

8. One set of written submissions filed in this Court described those orders in these terms:

“The practical effect [of the orders] would be to require that in any publication of those proceedings those offenders be referred to by pseudonyms.”

9. In referring to “those proceedings” they mean the proceedings before Fagan J.

10. To similar effect, another set of written submissions filed in this Court sought, inter alia, from this Court, on appeal from Zahra DCJ, an order as follows:

“There be suppression and non-publication of the fact of Siar Munshizada having been tried for the murder of Michael Davey, including publication of the charge, the plea any evidence given or tendered in the trial, any submissions or arguments, and of the fact of the jury returning a guilty verdict in each of those trials.”

11. On 30 November 2021, Zahra DCJ rejected the application. It seems that his Honour accepted that he had the power to make the orders, but nevertheless declined to do so, considering that it was not necessary and bearing in mind the findings of Fagan J.

12. Subsequent to the dismissal of the applications made to his Honour, the seven applicants then sought to apply to this Court under s 5F of the Criminal Appeal Act 1912 and also to invoke s 14 of the Court Suppression and Non-publication Orders Act. They in effect sought the relief that I have outlined earlier, which on any view appears to amount to a form of non-publication order one would expect to be made by Fagan J in the proceedings before his Honour.

13. When the applications were called on today, the Court indicated a fairly firm preliminary view that the applications were misconceived in that, in the ordinary course, if orders are to be made about the publication of information concerning trials in the Supreme Court, then those orders should be applied for to the Supreme Court judge hearing the matter.

14. To that end, I note that s 7 of the Court Suppression and Non‑publication Orders Act provides:

7   Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of—

(a)   information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b)   information that comprises evidence, or information about evidence, given in proceedings before the court.

15. It can be seen that the scope of this power is directed to a Court making orders in respect of information disclosing the identity of a party or witnesses, et cetera, in that same Court. It does not on its face authorise any Court to make orders in respect of proceedings in another Court. While, it is conceivable that as a matter of construction an order under s 7 could definitely affect the reporting and publicity associated with proceedings before a different Court, it should be clear from at least the order sought in respect of Mr Munshizada that that does not appear to be in substance what was sought.

16. It follows that at the very least I have significant doubts that s 7 could support the relief sought in the terms that it was sought. Otherwise, to the extent that it might be said that the District Court could have made the orders sought based upon its implied powers to protect its own processes, I have significant doubts of the limits of that power to make orders of the kind sought here in these circumstances.

17. In any event, from as long ago as August 2021 the parties to the proceedings before Fagan J, and in fact the other applicants, were on notice of the position and orders made by Fagan J, and none of them sought to apply to his Honour or to appeal to this Court from the orders of his Honour. Instead, they pursued the unorthodox and I consider impermissible approach of seeking to have a District Court judge make orders in effect that would bind the conduct and reporting of Supreme Court proceedings, when that very topic had been specifically addressed by Fagan J.

18. In that respect the proceedings had the hallmark of an abuse of process, appearing to be in effect an attempt to subvert Fagan J’s determination by seeking orders from the District Court, which would have the effect of undermining what his Honour had determined.

19. Given the preliminary and strongly expressed views of the Court, the parties accepted that it was appropriate to at least make a further application to Fagan J. As I understand it at least one application is listed before his Honour just prior to the commencement of the sentencing proceedings at 10am on Monday. What was then sought in these proceedings was an adjournment of these applications and the making of an interim order under s 10, pending the determination by his Honour.

20. In light of the conclusions I have reached it seems to me inappropriate to adjourn applications that I consider should not have been brought. They will not add anything to what Fagan J can determine. Equally, the making of an interim order under s 10 rises no higher than what I consider were unachievable forms of final relief in these proceedings. They otherwise assume that Fagan J would perhaps, by some effluxion of time, not allow the substance of the applicant’s complaints to be heard. I do not consider there is any basis for that contention either.

21. It was in these circumstances that I joined in the refusal to adjourn these proceedings. I did so knowing that any dismissal of the applications would not finally determine their rights, and in circumstances where I understand that Fagan J would be in a position to address the matter on Monday morning with the applicants having whatever rights might follow from his Honour’s determination. It was in these circumstances that I also refused the claim for interim relief under s 10.

22. I would add that it needs to be understood that the starting position in relation to such orders is the principle of open justice. At this point in time, the judicial officer best placed to address the consideration of open justice in relation to the conduct of murder trials in this Court is the judge who presided over them, namely Fagan J.

23. ROTHMAN J: I agree with the orders proposed. I would add the following comments. Except as expressly noted, I agree with the reasons for judgment of the learned presiding Judge, the Chief Judge at Common Law. I rely on his recital of the circumstances with which we are dealing. There are a number of matters which I would raise.

24. First, I do not make any comment as to the power of Zahra DCJ or a judge of the District Court to deal with the suppression of prior convictions that may have been obtained in the Supreme Court. It seems to me that the issue with which Zahra DCJ was dealing may be a different issue from that which was being dealt with by Fagan J, and I will leave for another day the issue of whether or not there is power in the District Court to make such an order. However, Fagan J expressly provided for the circumstances of publication of the material in his trials and it would be extremely peculiar if such an order could be rendered nugatory by an order of a court lower in the judicial hierarchy.

25. The District Court, of course, has no inherent power, it has implied powers, but whether those implied powers would withstand the statutory requirements of the Act, that is the Court Suppression and Non‑publication Orders Act 2010, is a different question completely.

26. To come before this Court, which is the Supreme Court exercising a statutory jurisdiction, albeit a superior court of record, and seek to make orders such as those contained in s 10 that deal with matters that are not necessarily within the compass of the appeal that is sought, is a brave step. It seems to me that the first step that a party must take in dealing with the non-publication of an order of the Supreme Court or reasons for judgment of the Supreme Court is to apply under s 13 to the judge who issued the judgment and/or issued the orders. To come to this Court as a port of first choice is in my view an abuse of process.

27. Counsel sought to differentiate the position of the four persons who were the subject of conviction before the Supreme Court and the other parties before Zahra DCJ, but with respect to that submission, s 13(2)(e) allows Fagan J to hear submissions and deal with an application by any person who in the Court’s opinion has a sufficient interest in the question of whether a suppression order should be made. That would, and of course I am not binding Fagan J, seem to be at least for the three others who are said to be prejudiced by the publication of the reasons and/or orders in the same way as it would apply, for example, to a press representative. Further, unlike this Court exercising its statutory jurisdiction, the Supreme Court, in its general jurisdiction, has the inherent jurisdiction arising from the 1824 Charter and s 23 of the Supreme Court Act, to protect the integrity of the District Court proceedings.

28. The effect of the orders made by Fagan J in August 2021 is that the publication is suppressed until 10am, at least, on 6 December. The matter of the suppression order or a revisiting and review of the suppression order is listed for 9.45am on that day. To come to this Court and seek to have kept in place an appeal, in circumstances where those matters will be dealt with at the first instance under s 13 by Fagan J, is in my view an abuse of process and quite inappropriate. The application for orders under s 10 of the Act do not seem to relate to the appeal or any other jurisdiction of or proceeding before this Court.

29. For those reasons, additional to the reasons of the learned Chief Judge at Common Law, I support the orders and concur with the orders made or announced by him.

30. WILSON J: I also agree with the reasons expressed by the Chief Judge at Common Law. I echo his Honour’s comments that these are appeals that should never have been brought. They amount to an attempt to defeat the orders of the Supreme Court, orders made in the interests of maintaining open justice, without seeking to have those orders reviewed either by the Supreme Court pursuant to s 13 or pursuant to s 14 by this Court. All seven of the present applicants could have sought a review pursuant to s 13, they chose not to. The applications are wholly misplaced. If they do not constitute an abuse of process, they must be regarded as coming very close to that.

31. For all of those reasons I joined in the orders of the Court.

32. BEECH‑JONES CJ at CL: The Court will adjourn.

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Decision last updated: 16 December 2021