Citation: R v Ibrahim Elomar; R v Mamdouh Elomar; R v Jousif [2017] NSWSC 1860
Court: Supreme Court of New South Wales
Date: 5 September 2017
Judge(s): Adamson J
Background
The offenders had each pleaded guilty to a serious offence that the court described as rarely prosecuted. The matter was before the Supreme Court for sentencing proceedings. The precise nature of the offence is not detailed in the published judgment.
In preparation for those proceedings, the Crown sought non-publication orders over two decisions of the Victorian Supreme Court. The Crown relied on an affidavit by Jimmy Ishak sworn on 5 September 2017, which annexed the relevant Victorian documents. The application was made under the Court Suppression and Non-Publication Orders Act 2010 (NSW).
The orders were sought not to suppress the material entirely, but to restrict its publication while permitting the offenders' counsel and legal representatives to access the Victorian decisions for the purposes of the sentence hearing.
Legal Issues
- Whether the court was satisfied that a non-publication order was necessary to prevent prejudice to the proper administration of justice under s 8(1)(a) of the Act.
- Whether the public interest in making the order significantly outweighed the public interest in open justice under s 8(1)(e) of the Act.
- What duration was appropriate for the orders under s 12 of the Act, given the requirement that they operate no longer than reasonably necessary.
Decision
Adamson J was satisfied, on the basis of the Ishak affidavit, that non-publication orders were necessary. The material had the potential to affect proceedings still continuing in Victoria, engaging the ground in s 8(1)(a) concerning prejudice to the proper administration of justice.
Her Honour also relied on s 8(1)(e), finding that the public interest in making the order significantly outweighed the public interest in open justice. The relevant public interest was described as the interest in ensuring the offenders' legal representatives were not deprived of access to potentially useful comparative sentencing material. The offence in question is rarely prosecuted, meaning sentencing remarks for that offence or similar offences are correspondingly scarce.
On the question of duration, the court was required under s 12(2) to ensure the orders operated no longer than reasonably necessary. The Crown provided an undertaking to inform the court when the associated Victorian proceedings had been finally determined. Adamson J considered that undertaking sufficient to justify making the orders "until further order," with the court noting it would be in a position to revisit and, if necessary, dissolve the orders once the undertaking was fulfilled.
Orders Made
- Non-publication orders made in terms of the short minutes of order, initialled and dated by Adamson J and placed with the papers.
- Orders to operate "until further order," subject to the Crown's undertaking to inform the court when the associated Victorian Supreme Court proceedings are finally determined.
- The Crown's undertaking recorded on the short minutes of order.
Key Takeaways
- Under s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), a non-publication order may be justified where the material in question has the potential to affect proceedings that are still continuing in another jurisdiction.
- The public interest ground in s 8(1)(e) can be engaged where restricting access to interstate judicial decisions serves the interests of the administration of justice in the current proceedings, even where the immediate effect is to limit open justice.
- A non-publication order framed as "until further order" satisfies the durational requirement in s 12(2) where a Crown undertaking to report the resolution of related proceedings provides a sufficient mechanism for the court to revisit the orders at the appropriate time.
- Where an offence is prosecuted only rarely, comparative sentencing material from other jurisdictions may carry particular significance, and a court may factor the scarcity of such material into its public interest analysis under s 8(1)(e).
- The orders permitted an exception allowing the offenders' counsel and legal representatives to access the suppressed Victorian decisions for the purposes of the sentence hearing, illustrating that non-publication orders can be tailored rather than absolute.
Legislation and Cases Referenced
Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8, 12
Cases cited:
No cases were cited in the judgment.