R v Abdaly; R v Hosseinishoja (No 5)

This is the final day of the trial of Sayed Anush Abdaly and Seyed Amirmohammad Hosseinishoja each of whom is charged with the murder of Nikola Srbin in 2013. A co-accused, Abuzar Sultani, entered a plea of guilty to the charge in the first week of a pre-trial hearing which took place between 25 October and 8 November 2022. The trial proper commenced on 9 November 2022 and I am about to deliver judgment and return verdicts in relation to each man.

This judgment relates to whether the Court should make non-publication orders to protect the integrity of five criminal trials listed throughout 2023 and one trial listed in 2024. There is a strong public interest in the courts being open to the public and in the freedom of the media to report on such trials. Non-publication orders should only be made if they are necessary and, if they are made, their content and duration should go no further than is necessary.

At the beginning of the pre-trial hearing, I made orders preventing publication of the evidence adduced and submissions made on the pre-trial hearing. As it turned out, that encompassed Mr Sultani’s plea of guilty two days later. Those orders were calculated to avoid the possible impact on the jury pool and expired when I made an order for a trial by judge alone.

At that stage, I heard submissions on what, if any, further orders may be necessary. The Prosecutor opposed final orders while the accused pressed for orders to protect their interests in uncontaminated jury pools for their subsequent trials. There were other interested parties including the media and other men due to face trial and prosecution next year. I concluded that interim orders should be made (without the need to determine the merits) [1] but that the orders should be limited to the identity of the three accused (including Mr Sultani whose status had changed – from “accused” to “offender” following his guilty plea).

Section 10 of the Court Suppression and Non-publication Orders Act requires that, when an interim order is made, any application for final orders must be determined as a matter of urgency. Accordingly, I listed the matter for final orders at 2.00pm on Friday, 18 November 2022. Arrangements were made to have other interested parties informed of the date. I welcomed submissions and evidence from any media organisation or individual reporters and from other accused persons who are involved in the trials next year.

The invitation to the media was conveyed in court when reporters were known to be listening to the proceedings online, and through the Supreme Court’s media liaison officer. No journalist or lawyer acting on behalf any media organisation appeared at the hearing and no evidence or written submissions were filed.

A notice of motion was filed on behalf of Joshua Baines, who is an accused person to be tried next year. A notice of motion was also filed on behalf of Mr Sultani, who also has a number of trials listed next year. Ms Jessica Fahmy, the solicitor for Mirwais Danishyar (another person to be tried next year), wrote to the Court indicating that her client joined in the applications made by Messrs Sultani, Abdaly and Hosseinishoja. Ms Fahmy filed an affidavit in support of the application. The solicitor for Mr Sultani also filed an affidavit.

In addition to the affidavits specifically read on the application, I have also read and had regard to the affidavits tendered on the voir dire which included some detail of the media coverage of related cases.

I received written submissions on behalf of the present accused and various interested parties (which I take to include, at least, Messrs Sultani, Baines and Danishyar). The Prosecutor also filed written submissions. Oral submissions were made on the afternoon of 18 November 2022.

It is to be observed that the submissions on behalf of the various accused (both current and prospective) sought orders of wider import than those that had been in place. This may have resulted on a misapprehension of the breadth of the interim orders that were made on 9 November 2022. Those orders were recorded in the transcript as follows:

At the conclusion of the argument on the final order, to preserve the interests reflected in the broader orders sought in the notices of motion filed on behalf of Messrs Sultani and Baines, I varied the interim orders as follows:

The prosecution provided a schedule of the trials listed to be heard over the next 12 months or so. The cases are not directly connected with each other, but they are indirectly connected in that they relate to offences allegedly committed by Mr Sultani and a number of his associates and in the context of their involvement in a “criminal group”. Similar trials and sentencing proceedings have occupied courts at various levels for the last few years. Mr Sultani and others had a series of trials and sentencing proceedings before Fagan J in this Court. There were seven trials “utilising about 29 weeks of Court and jury time”. [4] A number of the accused in those trials received long sentences of imprisonment including life sentences.

During the currency of the proceedings before Fagan J there were non-publication orders to ensure that subsequent trials were not compromised by potential jurors becoming aware of the fact that some of the accused were also charged with, or had pleaded guilty to or found guilty of, multiple counts of murder committed in the context of their involvement in Mr Sultani’s criminal activities and groups.

After the verdicts, Fagan J lifted the non-publication orders. [5] Meanwhile, an application was made to the District Court seeking orders purporting to restrict publication of the Supreme Court proceedings. The late Judge Zahra SC declined to make those orders.

Both the decision of Fagan J (lifting the non-publication orders) and that of Judge Zahra were subject to unsuccessful appeals. [6]

The evidence on the present application establishes that, following those decisions, there was a large amount of media coverage of a sensational kind. The media attention was focussed on Sultani as a “mass murderer” or triple murderer and his “crew” which was described as, amongst other pejorative phrases, “a black ops hit squad”.

Ms Fahmy’s affidavit asserts:

Ms Fahmy was not required for cross-examination and her affidavit was not challenged.

The cavalcade of publicity following the lifting of the non-publication orders was the second wave of publicity surrounding these cases and Mr Sultani’s criminal activities. The first wave came much earlier when a large number of gang members were charged with a spate of murders following an investigation which seemed to commence with the execution-style killing of Pasquale Barbaro in 2016.

A third wave of publicity arose when Mr Sultani was stabbed in prison by a gangland rival. That led to more sensational reporting with links back to earlier articles.

The publicity surrounding these cases was part of the reason that the present accused sought a judge alone trial. It was not the reason I ordered a trial without a jury but it played some part in my decision. The earlier publicity increased the risk of the trial being prejudiced and requiring a discharge of the jury, and that was considered in the light of the fact that Mr Abdaly had been bail refused for around six years. I accepted the submission that the interests of justice required that the trial be completed this year and that the only way that could be ensured was for it to be conducted without a jury.

If Mr Sultani’s plea of guilty to a fourth murder is able to be published, along with the identities involved in the present trial, there is likely to be another wave of publicity. It is likely to be, at least in part, sensational and the online versions will enable readers to link back to earlier articles. The articles will inevitably emphasise Mr Sultani’s leadership role in the group, the number of criminal offences proved or alleged which involve members of his criminal group, and the roles of some of the individual participants. The present trial included reference to several of the men to stand trial next year.

The trials listed over the next 12 months or so are these:

The issue must be determined by reference to the provisions in section 8 of the Court Suppression and Non-publication Orders Act:

The relevant paragraphs are (a) and, possibly, (e).

The applicants submit that publicity surrounding this trial will compromise the Court’s ability to obtain a jury pool and panel free of prejudice arising from the publicity. It is not uncommon that courts make orders delaying the publicity surrounding criminal proceedings to protect the integrity of forthcoming trials involving the same or similar issues, evidence or identities.

The major factors militating against the making of the non-publication orders are the following:

These are significant matters and reflect the law’s abhorrence to the closure of the courts and the stifling of public discourse about, and reporting of, court proceedings.

However, there are compelling matters in the present case that favour the making of some restriction on the publication of names and identities. These include:

The forgoing paragraphs illustrate the collision of two fundamental principles, which was discussed by Spigelman CJ in John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324. His Honour said at [17]-[23]:

The Chief Justice emphasised that it is well established that “the exceptions to the principle of open justice are few and strictly defined.” His Honour turned to consider the principle of a fair trial and “the most forceful terms” in which the High Court has characterised that principle:

I have concluded that some prohibition on publication is necessary to prevent prejudice to the proper administration of justice. However, that prejudice can be prevented by simply delaying the publication of the names of the three accused in the present proceedings and those of the three other men who have been mentioned during the proceedings.

I accept the analysis of Mr Lange that the most likely prejudice flowing from the unrestricted reporting of the current proceedings is to the criminal group charge. That is because the evidence in the present case included factual details, unlikely to be elicited in the criminal group trial, but potentially prejudicial in the resolution of those issues. For example, the prosecution case included the names and roles of the accused in this and other trials as well as Mr Sultani’s role as the leader of the group.

Accordingly, any non-publication orders will expire upon the conclusion of the criminal group trial (or upon an order for the trial to be conducted by judge alone). Limiting the duration of the order reduces the interference with open justice and reporting of the proceedings.

I appreciate that the current accused men have a further District Court trial listed in November next year. However, given the outcome of the present trial (which will be known by the time these reasons are published), I am not persuaded that it is necessary to delay publication for a period of around 12 months.

The orders will not impact on the ability of the media to report that a plea has been entered and verdicts have been reached in this trial.

The orders will not prohibit reporting of the evidence or publication of the circumstances of the killing and the evidence in the case, provided such publication does not result in disclosure of the identity of the men whose names will be nominated in the order. Nor will the order prevent publication of the reasons for judgment in the case.

The media should be conscious of suppression orders, and other protective orders, made in relation to some of the witnesses in the case.

I make the following orders: