Citation: Munshizada v R; Baines v R; Danishyar v R; Hosseinishoja v R; Shekeb v R; Sultani v R; Abdaly v R [2021] NSWCCA 307
Court: Court of Criminal Appeal, NSW
Date: 16 December 2021
Judges: Basten JA, Adamson J, Wright J
Background
Seven individuals had been convicted of inter-gang murders following a series of back-to-back trials in the Supreme Court presided over by Fagan J. During those trials, non-publication orders had been in force for a number of years to protect the integrity of the jury process. On 26 August 2021, Fagan J indicated he would lift those orders when sentencing commenced, which was scheduled for December 2021.
Separately, each of the seven, together with a number of other accused, faced a forthcoming District Court trial listed to commence on 7 February 2022. The charges related to participation in a criminal group under s 93T of the Crimes Act 1900 (NSW). On 30 November 2021, the accused applied to Zahra SC DCJ in the District Court to effectively continue the existing Supreme Court non-publication orders to protect the fairness of that upcoming trial. Zahra SC DCJ declined the application in a carefully reasoned decision.
Appeals and further applications followed in rapid succession. The matter came before the Court of Criminal Appeal twice. On the second occasion, 6 December 2021, the Court granted an interim order to preserve the status quo while it determined the substantive application, as it was not practicable to hear full argument that afternoon.
Legal Issues
- Whether non-publication orders made under the Court Suppression and Non-publication Orders Act 2010 (NSW) to protect completed Supreme Court trials should be extended to protect a related forthcoming District Court trial
- How to balance the principle of open justice against the need to ensure a fair trial for accused persons in related criminal proceedings
- Whether the timing of the anticipated publicity, given the proximity of the District Court trial date, created a sufficient risk of prejudice to justify continuing the suppression regime
- Whether procedural alternatives, such as adjournment or a judge-alone trial, adequately addressed any identified prejudice
Decision
The Court declined to extend the non-publication orders. While acknowledging the application was not without arguable merit, the Court concluded that the applicants had not established their case on the materials and submissions before it. Three preliminary observations shaped the Court's approach: the application raised genuine questions of principle; the Court was operating without full factual detail; and the compressed timeframe was, in part, a consequence of the applicants' own belated approach to the District Court in late November.
The Court gave considerable weight to the fact that multiple judges who had full command of the underlying proceedings had each refused to continue the orders. Fagan J declined to extend them; Zahra SC DCJ declined to make new ones after a detailed hearing; and the Court of Criminal Appeal, on its first occasion hearing the matter, declined to intervene. The Director of Public Prosecutions did not support the extension, which the Court treated as a factor casting doubt on the necessity for the orders.
The Court also noted that the prospect of prejudice from anticipated media publicity was not straightforwardly irremedial. Many of the underlying facts were likely to emerge in any event during the District Court trial, introduced through evidence and subject to the rules of procedure rather than uncontrolled media disclosure. That consideration, combined with the trial judge's capacity to give carefully formulated jury directions, reduced the weight of the prejudice argument.
The Court acknowledged the real tensions involved: some accused may have been held on remand for a significant period, making an adjournment undesirable; and any disruption to the District Court's scheduled February 2022 sittings could affect the wider effort to address the pandemic-related backlog of criminal trials. Nonetheless, those considerations did not outweigh the competing interests, and the applications were dismissed.
Orders Made
- Leave to appeal granted from the refusal of Fagan J on 6 December 2021 to extend the non-publication orders
- Appeal dismissed
Key Takeaways
- In refusing to extend the non-publication orders, the Court of Criminal Appeal confirmed that the principle of open justice carries significant weight and that suppression orders are not automatically extended merely because a related proceeding is pending.
- A finding by multiple courts, across multiple applications, that non-publication orders were unnecessary constituted a strong, though not determinative, factor in the overall assessment.
- Under the Court Suppression and Non-publication Orders Act 2010 (NSW), the mere risk of adverse publicity in proximity to an upcoming trial does not of itself establish the necessity for a suppression order, particularly where trial management tools such as jury directions remain available.
- The Court noted that procedural remedies including adjournment or judge-alone trial applications could, in principle, address residual prejudice, though it also acknowledged those options carry their own complications for the administration of justice.
- The fact that the Director of Public Prosecutions did not seek to maintain the orders was treated as a relevant consideration weighing against the applicants' case, reflecting the significance of prosecutorial assessment in applications of this kind.
Legislation and Cases Referenced
Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 4, 5, 7, 8, 9, 10, 13, 14
- Crimes Act 1900 (NSW), ss 93S, 93T
Cases:
- Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 293 ALR
- John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324
- Nationwide News Pty Ltd v Qaumi [2016] NSWCCA 97