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Supreme Court 6 December 2022

R v Abdaly; R v Hosseinishoja (No 5)

[2022] NSWSC 1657

Public order & justice offences
CRIMINAL LAW NON PUBLICATION ORDERS TEST OF NECESSITY PREVIOUS TRIALS PREVIOUS NON

Citation: R v Abdaly; R v Hosseinishoja (No 5) [2022] NSWSC 1657
Court: Supreme Court of New South Wales
Date: 6 December 2022
Judge(s): Hamill J

Background

This decision arose on the final day of a judge-alone murder trial involving two accused. A co-accused had pleaded guilty to the same murder charge during pre-trial proceedings. The trial was one in a long-running series of proceedings connected to the criminal activities of an organised group, with multiple further trials involving associated accused persons listed throughout 2023 and into 2024.

The proceedings had attracted significant and, according to evidence before the court, sensational media coverage over several years. That coverage included reporting on earlier convictions and lengthy sentences, including life sentences, handed down against members of the same group in proceedings before Fagan J. Following the lifting of non-publication orders in those earlier proceedings, a large volume of prejudicial reporting had emerged, linking the accused and their associates to organised criminal activity in lurid terms.

The question before Hamill J was whether final non-publication orders should be made to protect the integrity of the forthcoming jury trials. Interim orders had been in place since 9 November 2022, and the Act required any application for final orders to be dealt with urgently.

  • Whether final non-publication orders were necessary under the Court Suppression and Non-publication Orders Act 2010 (NSW) to prevent prejudice to the proper administration of justice
  • What scope and duration such orders should take, consistent with the principle that any restriction on publication should go no further than necessary
  • How to balance the fundamental principle of open justice against the right of accused persons to a fair trial before an uncontaminated jury pool
  • Whether the sensational media coverage already in existence heightened the risk of prejudice to future jury trials

Decision

Hamill J confirmed that non-publication orders are only justified where they are necessary and must be limited in both content and duration to what is strictly required. Open justice is a fundamental principle: courts are presumptively open, and the media's right to report on proceedings is an important aspect of that principle. Any departure from openness demands clear justification.

The court accepted that the background of extensive, sensational media reporting created a real risk that potential jurors in forthcoming trials would be exposed to prejudicial material. That risk was not theoretical. Evidence before the court, including an unchallenged affidavit from a solicitor acting for one of the prospective accused, established that reporting since the lifting of earlier non-publication orders had been, in the words used at the time by Basten JA, "lurid, repetitive and irresponsible." Three distinct waves of publicity had washed over these proceedings in recent years.

The prosecution opposed the making of final orders, while various accused persons (both current and prospective) sought orders of broader scope than those already in place. No media organisation appeared or filed submissions, despite being given the opportunity to do so through the court's media liaison officer. The court noted that the accused's representatives appeared to have misapprehended the scope of the interim orders already in place and had sought wider restrictions than were warranted.

Hamill J found that final orders were necessary but calibrated them to achieve the minimum interference with open justice. The orders were grounded in the need to prevent prejudice to the proper administration of justice, particularly in light of the imminent jury trials, and were limited in duration to the conclusion of the next relevant trial or the making of a judge-alone order in that trial, whichever occurred first.

Orders Made

  • A non-publication order was made on the ground that it is necessary to prevent prejudice to the proper administration of justice.
  • The order applies throughout the Commonwealth of Australia (pursuant to s 11 of the Act).
  • The order expires at whichever of the following occurs sooner:
  • the conclusion of the criminal group trial listed to commence in the District Court on 17 April 2023; or
  • the making of an order under s 132 of the Criminal Procedure Act 1986 (NSW) that the criminal group trial be a trial by judge alone.

Key Takeaways

  • Non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) require a finding of necessity; the test is not mere convenience or desirability, and the scope and duration of any order must be no broader than is required to address the identified risk.
  • Where a history of extensive, sensational media reporting has created a real risk of contaminating a future jury pool, that background can support a finding that non-publication orders are necessary to prevent prejudice to the proper administration of justice.
  • Open justice and the right to a fair trial are both fundamental principles, but they can come into direct conflict in proceedings involving multiple related trials; the court's task is to achieve the minimum interference with open justice that will adequately protect the fairness of subsequent proceedings.
  • The absence of any media opposition, while not determinative, was a relevant circumstance in assessing the application; media organisations were given a clear opportunity to appear and file submissions but did not do so.
  • Non-publication orders in this context should be time-limited, expiring either at the conclusion of the next relevant trial or upon the making of a judge-alone order in that trial, reflecting the principle that restrictions on publication should lapse as soon as the risk justifying them has passed.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 10, 11, 12
- Criminal Procedure Act 1986 (NSW), s 132

Cases:
- Fairfax Digital Australia and New Zealand v Ibrahim (2012) 263 FCR 211; [2012] NSWCCA 125
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21
- John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324
- Munshizada v R; Baines v R; Danishyar v R; Hosseinishoja v R; Shekeb v R; Sultani v R; Abdaly v R [2021] NSWCCA 307
- Nationwide News Pty Limited v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97
- R v Abdaly; R v Hosseinishoja (No 3) [2022] NSWSC 1511
- R v Glennon (1992) 173 CLR 592; [1992] HCA 16
- R v Horsham Justices, ex parte Farquharson [1982] 1 QB 762
- R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177
- R v Qaumi & Ors (No 15) (Non-publication order) [2016] NSWSC 318
- R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654
- R v Sultani; R v Munshizada; R v Baines; R v Danishyar (Non-publication orders) [2021] NSWSC 1611
- Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
- Sultani v R; Shekeb v R; Abdaly v R; MD v R; Baines v R; Munshizada v R; Hosseinishoja v R [2021] NSWCCA 301