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7
Court of Criminal Appeal 27 May 2016

Nationwide News Pty Limited v Qaumi

[2016] NSWCCA 97

Also reported as (2016) 93 NSWLR 384
Public order & justice offences
APPEAL PUBLICATION ORDERS ACT 2010 (NSW), S 14 NON PUBLICATION AND TAKE INTERLOCUTORY MATTERS NON

Citation: Nationwide News Pty Limited v Qaumi [2016] NSWCCA 97
Court: NSW Court of Criminal Appeal
Date: 27 May 2016
Judges: Bathurst CJ; Beazley P; Hoeben CJ at CL

Background

Several accused faced serious criminal charges in the Supreme Court of New South Wales, including murder and conspiracy to murder, arising from a conflict between two rival criminal groups. The charges related to two separate murders. The trial judge (Hamill J) severed the indictment so that the two sets of charges would be tried separately, directing that the second trial commence immediately upon completion of the first ("back-to-back trials").

In March 2016, Hamill J made two categories of orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Suppression Act). First, he prohibited publication of the evidence and submissions in the first trial until the conclusion of the second trial. Second, he ordered certain media organisations to remove specific articles from their websites (the "take-down orders").

Two media organisations, a national newspaper publisher and a public broadcaster, sought leave to appeal both categories of orders. They argued that neither the non-publication order nor the take-down orders met the statutory test of being "necessary" under the Suppression Act.

  • Whether an appeal from suppression orders made in the context of a criminal trial lies to the Court of Criminal Appeal or the Court of Appeal.
  • Whether the non-publication order prohibiting reporting of the first trial until the end of the second trial was "necessary" within the meaning of the Suppression Act, s 8.
  • Whether the take-down orders directing removal of archived news articles from media websites were "necessary," particularly where similar material remained accessible elsewhere on the internet.
  • What the proper relationship is between the principle of open justice and the right to a fair trial when those principles come into conflict.

Decision

Jurisdiction. The Court of Criminal Appeal held that appeals from suppression orders made in the context of criminal proceedings lie to the Court of Criminal Appeal, not the Court of Appeal, as it is the court from which an appeal would lie against a final judgment in the Supreme Court's criminal jurisdiction. The appeal proceeds by way of hearing de novo (a fresh hearing on the merits).

The "necessary" threshold. The court confirmed that "necessary" is a strong word, indicating that orders under the Suppression Act should be made only in exceptional circumstances. It is not enough that an order is convenient, reasonable, or serves a general notion of the public interest. Open justice is a fundamental principle, but it may in some circumstances yield to other foundational principles, including the right to a fair trial. The court accepted that a total prohibition on reporting of one criminal trial until the conclusion of a related second trial can, in an exceptional case, be necessary to prevent prejudice to the proper administration of justice.

Non-publication order: appeal dismissed. The court upheld Hamill J's non-publication order. Several factors supported the finding of necessity: delaying the second trial was not a sufficient alternative, given the importance of bringing charges to trial promptly and protecting witnesses from the effects of delay; pseudonym orders were unlikely to be sufficient where unique identifying features could taint the prospective jury pool for the second trial; and the integrity of witness evidence could be undermined by both fading memory and the risk of intimidation. The court also made a non-publication order over its own judgment for the same reasons.

Take-down orders: appeal allowed. The court set aside the take-down orders, finding they would be futile. The material was old, similar content remained available elsewhere on the internet, and the evidence that removing one item had reduced available information was insufficient to establish that the orders would achieve meaningful removal. The court also gave weight to the established practice of trial judges directing juries to decide cases on the evidence before the court, noting that juries are generally accepted to act responsibly and comply with such directions.

Orders Made

  • Non-publication order made by the Court of Criminal Appeal over its own proceedings (3 May 2016) and its judgment, to operate until the conclusion of the second murder trial or until further order, applying throughout the Commonwealth, on the basis of necessity to prevent prejudice to the proper administration of justice.
  • Leave to appeal granted.
  • Appeal dismissed in relation to the non-publication orders made by Hamill J on 24 March 2016.
  • Appeal allowed in relation to the take-down orders made by Hamill J on 24 March 2016.
  • Take-down orders (Orders 1 to 13 made by Hamill J relating to website removal) set aside.

Key Takeaways

  • Under the Court Suppression and Non-publication Orders Act 2010 (NSW), suppression orders made in connection with criminal proceedings are the subject of appeals to the Court of Criminal Appeal, not the Court of Appeal, and those appeals proceed by way of de novo hearing.
  • The statutory requirement that an order be "necessary" sets a high bar. Convenience, reasonableness, or a general public interest benefit will not suffice; the circumstances must be exceptional.
  • In dismissing the media parties' appeal on the non-publication order, the Court of Criminal Appeal confirmed that a total prohibition on reporting of a criminal trial may be necessary in an exceptional case, particularly where back-to-back trials are ordered, prompt justice for accused persons is a priority, witness evidence is at risk of contamination, and pseudonym orders would be inadequate.
  • A take-down order will fail the necessity test if it is futile, and an order may be futile where the court is not satisfied that it would result in sufficient removal of material from the internet, even if partial removal is possible.
  • Longstanding judicial experience supports the view that juries act responsibly and comply with directions from trial judges, including directions to decide cases only on the evidence presented in court. This principle informed the court's assessment of whether take-down orders were necessary.

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8
- Crimes Act 1900 (NSW)

Cases
- Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 293 ALR 384
- Gilbert v The Queen [2000] HCA 15; 201 CLR 414
- Hamzy v R [2013] NSWCCA 156
- Hogan v Hinch [2010] HCA 21; 240 CLR 651
- John Fairfax & Sons Ltd v Police Tribunal (NSW) (1985) 5 NSWLR 465
- John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; 61 NSWLR 344
- Lee v New South Wales Crime Commission [2013] HCA 39
- R v Glennon [1992] HCA 16; 173 CLR 592
- R v Perish; R v Lawton; R v Perish [2011] NSWSC 1102
- R v Qaumi (No 3) (Severance and separate trial) [2016] NSWSC 15
- R v Qaumi (No 15) (Non-publication order) [2016] NSWSC 318
- R v Qaumi (No 16) (Internet "take down" orders) [2016] NSWSC 319
- Rinehart v Welker [2011] NSWCA 403
- X7 v Australian Crime Commission [2013] HCA 29