Citation: R v Sinai (No 2) [2021] NSWSC 777
Court: Supreme Court of New South Wales
Date: 1 June 2021
Judge(s): R A Hulme J
Background
The accused faced trial for murder arising from a shooting that occurred outside a Bankstown café in January 2018. The Crown alleged the accused participated in a joint criminal enterprise with the shooter, who had already pleaded guilty. After the jury was empanelled in early May 2021, the accused's senior counsel withdrew, the jury was discharged, and the trial was set to recommence in June 2021 with new counsel.
In anticipation of the resumed trial, the accused's solicitor filed a Notice of Motion seeking orders under the Court Suppression and Non-publication Orders Act 2010 (NSW). The application initially sought a broad take-down order covering all online publications concerning the accused, with an alternative request for non-publication orders relating to six categories of potentially prejudicial content.
By the time of the hearing, counsel for the accused conceded the broad take-down order could not be granted and withdrew that part of the application. Two narrower non-publication orders were pressed: one relating to a video in which police could be heard announcing "Police FPO" during the arrest, and another relating to a news article quoting a Homicide Squad Commander linking unnamed murder suspects to bikie gangs.
Legal Issues
- Whether a non-publication order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) was "necessary to prevent prejudice to the proper administration of justice" within the meaning of s 8(1)(a) of that Act.
- Whether pre-existing online media content about the accused was sufficiently prejudicial to warrant suppression orders ahead of the retrial.
- Whether proposed orders directed at specific publications were appropriate where similar material remained freely available elsewhere online.
Decision
Hulme J dismissed the application. His Honour found that neither piece of identified content rose to an especially egregious level of prejudice. The reference to "FPO" in the arrest video was not clearly audible, and understanding its significance would require either specialist knowledge or repeated replaying. The manner of the police entry was unremarkable given the nature of the charge. The Homicide Squad Commander's statement linking unnamed persons to bikie gangs was vague and speculative in its potential impact on jurors.
The court held the proposed orders were not "necessary" within the meaning of s 8(1)(a), drawing on Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) for the proposition that an order must be reasonably appropriate and adapted to achieve its perceived purpose. The orders failed this standard.
His Honour also found the orders would be futile. A Google search returned approximately 100 results directly relating to the accused, and only a handful of articles had been annexed to the affidavit in support. Similar or identical material remained available across other online sources not addressed by the proposed orders. Consistent with Nationwide News Pty Limited v Qaumi (2016), the court expressed confidence that a proper jury direction not to conduct independent research would be sufficient, particularly given the publications were more than two years old and unlikely to be recalled by jurors.
The application also suffered from drafting deficiencies. The proposed orders were not directed at any identified person or entity in particular, were not expressed to apply in a particular place, and specified no time period, contrary to the requirements contemplated by ss 11 and 12 of the Act.
Orders Made
- The application for non-publication orders was dismissed.
Key Takeaways
- Under s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), a non-publication order must be "necessary" to prevent prejudice to the administration of justice; an order that is merely desirable or precautionary does not meet this threshold.
- Where substantial volumes of similar online material remain unconstrained, targeted non-publication orders directed at specific publications may be futile and therefore not "necessary" for the purposes of s 8(1)(a).
- The Supreme Court confirmed, consistent with Nationwide News v Qaumi, that courts can place significant weight on properly directed jury instructions as an adequate safeguard against pre-trial publicity, especially where the material in question is old and of limited notoriety.
- Proposed suppression orders must identify the person or entity to whom they are directed, the geographical scope of their operation, and the period for which they are to remain in force.
- The open justice principle under s 6 of the Act carries particular weight when an applicant seeks to suppress previously published material rather than prevent the publication of new material from court proceedings.
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8, 11, 12
Cases
- Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
- Nationwide News Pty Limited v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97