Citation: R v Qaumi & Ors (No 10) [2016] NSWSC 184
Court: Supreme Court of New South Wales
Date: 14 March 2016
Judge(s): Hamill J
Background
Five accused persons faced a forthcoming criminal trial listed for 4 April 2016. The matter had attracted pre-trial publicity, and all five accused applied under section 132A of the Criminal Procedure Act 1986 (NSW) for the trial to be conducted by a judge alone rather than a jury. That application was opposed by the Director of Public Prosecutions.
While the judge-alone application remained unresolved, Hamill J turned to an immediate practical concern: the risk that prospective jurors, upon seeing the accused named in a court listing, might search for information about them online before any prohibition on doing so had been communicated. At that pre-empanelment stage, potential jurors would have no reason to know they were restricted from conducting their own inquiries.
The court drew on the approach taken by Johnson J in R v McNeil [2015] NSWSC 357, a case involving a comparable application for a judge-alone trial where similar protective orders had been made. Hamill J adopted the same form of orders made in McNeil to address the publicity risk.
Legal Issues
- Whether non-publication orders should be made to prevent prospective jurors from accessing pre-trial publicity about the accused before empanelment.
- Whether the listing of the trial and the names of the accused should be suppressed until the first day of trial.
- Whether the judgment and the proceedings on the judge-alone application should be subject to a non-publication order.
Decision
Hamill J accepted that a real risk existed of prospective jurors independently searching for information about the accused once they became aware of the proceedings through court listings or other publications. At the pre-summons stage, potential jurors have no direction from the court restricting their conduct, leaving them free to make their own inquiries.
To address that risk, the court adopted the approach taken in McNeil, where Johnson J had made targeted non-publication orders designed to prevent the potential jury pool from accessing background material before empanelment. Hamill J treated those orders as the appropriate model.
The court made interim orders suppressing both the listing of the trial and the names of the accused. The accused were to be referred to only by the pseudonyms AA, BB, CC, DD, and EE in any listing or publication. These suppression measures were expressed to remain in force until the conclusion of the first day of trial or until further order, so as to lapse once the jury had been properly directed by the trial judge.
The judgment itself, together with the evidence and submissions made during the judge-alone application, was also the subject of a non-publication order.
Orders Made
- No publication of the listing of the accused's trial.
- No publication of the names of the accused; each to be referred to only as AA, BB, CC, DD, and EE in any listing or publication.
- Orders 1 and 2 to remain in force until the conclusion of the first day of trial or until further order.
- No publication of the judgment, or of the evidence and submissions given and made during the judge-alone application.
Key Takeaways
- The Supreme Court confirmed that non-publication orders can appropriately be made at the pre-empanelment stage to prevent prospective jurors from searching for information about accused persons before any jury directions have been given.
- A gap in jury oversight exists between the issuing of a summons and formal empanelment: at that point, potential jurors have received no instruction restricting their conduct and may independently investigate the accused if their names appear in public listings.
- Consistent with R v McNeil [2015] NSWSC 357, the court treated pseudonym and listing suppression orders as a practical mechanism for managing the effects of pre-trial publicity during the period before a jury is empanelled and directed.
- Suppression of both the trial listing and the names of accused parties was treated as appropriately temporary, with the orders framed to expire at the end of the first day of trial, reflecting a balance between publicity concerns and open justice.
- Proceedings on a judge-alone application, including the evidence and submissions made, may themselves be subject to non-publication orders where the circumstances warrant.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 132A
Cases:
- R v McNeil [2015] NSWSC 357 (Johnson J)