Citation: R v Sultani; R v Munshizada; R v Baines; R v Danishyar (Non-publication orders) [2021] NSWSC 1611
Court: Supreme Court of NSW
Date: 6 December 2021
Judge: Fagan J
Background
Four offenders were convicted in a series of seven Supreme Court trials between 2020 and 2021 for the murders of three men. Sentencing proceedings were listed to commence on 6 December 2021. A related trial on a separate indictment alleging 36 counts, including participation in a criminal group, was listed in the District Court from 7 February 2022.
Throughout the murder trials, the court had made a series of non-publication orders to protect the fairness of successive trials and to prevent evidence from one trial prejudicing juries in subsequent ones. Those orders were set to expire at 10:00am on 6 December 2021 by force of an earlier order made on 26 August 2021.
The four offenders applied to have the expiry time vacated and the non-publication orders continued through the sentencing proceedings and beyond. Three additional co-accused, charged on the criminal group indictment in the District Court, joined in the application on the basis that publicity about the murder convictions could prevent them from obtaining a fair trial.
Legal Issues
- Whether continuation of non-publication orders was "necessary to prevent prejudice to the proper administration of justice" under section 8(1)(a) of the Courts Suppression and Non-publication Orders Act 2010 (NSW).
- Whether prospective non-publication orders should be made in respect of the Supreme Court sentencing proceedings.
- Whether potential jury awareness of the murder convictions would prevent fair trial on the criminal group indictment in the District Court.
Decision
Issue 1: Continuation of non-publication orders
Fagan J refused the applications to continue the non-publication orders or to make prospective orders covering the sentence proceedings. The court was not satisfied that continuation was necessary to prevent prejudice to the proper administration of justice within the meaning of section 8(1)(a) of the Suppression Act (at [27]). The court noted there had been no material change of circumstances since the applications were refused on 26 August 2021.
Issue 2: Risk of prejudice to the District Court trial
The court found that the charges on the criminal group indictment were of an entirely different character from the murder charges for which the four offenders had been convicted, and were not alleged to have arisen out of or in connection with the murders (at [28]). The court saw no reason why jurors empanelled in the District Court could not be expected to follow a direction to decide the charges only on the evidence before them, without regard to the very different Supreme Court proceedings (at [28]). Any application for adjournment or stay at the commencement of the District Court trial would be a matter for that trial judge to address at the time (at [27]).
Issue 3: Brief extension to permit Court of Criminal Appeal application
Upon indicating it would dismiss the applications, the court noted that counsel intended to seek urgent leave to appeal in the Court of Criminal Appeal. To facilitate that application, the court varied the expiry time of the non-publication orders from 10:00am to 4:00pm on 6 December 2021, enabling the Court of Criminal Appeal to be approached and, if necessary, to extend time further (at [29]).
Orders Made
- Order 6 made on 26 August 2021 was varied to alter the expiry time of the non-publication orders to 4:00pm on 6 December 2021.
- All orders prohibiting publication of charges, pleas, evidence, submissions, verdicts and other aspects of the proceedings against the offenders for the murders of Michael Davey, Mehmet Yilmaz and Pasquale Barbaro were continued in force until 4:00pm on 6 December 2021, at which point they terminated.
Key Takeaways
- Continuation of non-publication orders beyond the final trial in a series is not automatically warranted by the existence of an upcoming, related trial in another court; the court must be satisfied the orders remain "necessary to prevent prejudice to the proper administration of justice" under section 8(1)(a) of the Suppression Act (at [27]).
- Where charges in an upcoming trial are of an entirely different character from concluded proceedings, the court found the risk of jury prejudice may be addressed adequately through judicial directions rather than suppression orders (at [28]).
- Non-publication orders made across a series of seven consecutive murder trials were justified by the significant similarities between the Crown cases, the close association of the accused, the safety concerns for informant witnesses, and the impracticality of lengthy delays between trials (at [18]-[20]).
- A four-year remand period for accused persons contesting charges weighed against interposing significant delays between individual trials, reinforcing the need for the back-to-back listing approach that underpinned the suppression regime (at [20]).
- Where applicants indicate an intention to seek urgent leave to appeal, a court may grant a short extension of an existing order's expiry time solely to permit that application to be made, without deciding the merits of the proposed appeal (at [29]).
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-publication Orders Act 2007 (NSW)
- Crimes Act 1900 (NSW)
Cases
- Not stated