Regina (C'Wealth) v Elomar & Ors

Australian Securities Investment Commission v Rich [2001] 51 NSWLR 643; [2001] NSWSC 496 per Austin J HIH Insurance Limited (In Liquidation) v General Reinsurance Limited unreported, NSWSC 10 March 2006 Jagelman v Sheahan 13 May BC 200202390 [2002] NSWSC 419 per Barrett J John Fairfax Publications v District Court of NSW [2004] 61 NSWLR 344 at paras 35-36 John Fairfax Publications v Ryde Local Court [2005] NSWLR 512 at 521 para 29 per Spigelman CJ CASES CITED : John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465 at 476G to 477B Seven Network Limited v News Limited (No 9) 5 October 2005 Seven Network Limited v News Limited [2005] FCA 1934 R v Davis (1995) 57 FCR 512 at 514 R v XU No 1 BC200500412 (at 43-44) per Kirby J The Queen v LMV unreported, NSWSC 15 November 1999 per Studdert J at para 18

Regina (C'Wealth) v Mohamed Ali ELOMAR [No 3] Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Khaled CHEIKHO PARTIES : Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohammed Omar JAMAL

FILE NUMBER(S) : SC 2007/2399001;; 2007/2400001; 2007/2395001; 2007/2398001; 2007/2452001

R Maidment SC; G. Bellew SC; C O'Donnell; Ms S McNaughton - Crown A Dawson - Media (By Leave) D Dalton SC; E Ozen - Accused Elomar Ms D Yehia; Ms S Beckett - Accused Hasan COUNSEL : C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho G Scragg; D Carroll - Accused Jamal

Commonwealth DPP Malleson Solicitors - Media Nyman Gibson Stewart - Accused Elomar SOLICITORS : Legal Aid Commission - Accused Hasan Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho Michael Doughty Solicitor - Accused Jamal

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

2007/2399001 - Regina v Mohamed Ali ELOMAR [No 3] 2007/2400001 - Regina v Abdul Rakib HASAN 2007/2395001 - Regina v Khaled CHEIKHO 2007/2398001 - Regina v Moustafa CHEIKHO 2007/2452001 - Regina v Mohammed Omar JAMAL

JUDGMENT - Applications for access by media interests to non-documentary exhibits - power to order access - inherent powers - power to permit photographing or filming of exhibits - ambit of Court's discretion

1 HIS HONOUR: I propose to give a decision this morning in the matter raised by Mr Dalton of senior counsel. 2 There is presently before the Court a jury trial of five men charged with conspiring to do acts in preparation for a terrorist act or acts. The first stage of the trial has involved the detailed tender of material and objects found in the possession of the accused and their alleged co-conspirators during a series of searches conducted by police agencies in 2005. 3 The first chapter of evidence, if I may so describe it, involved the tender of material and objects found at the home of Mohamed Elomar, one of the accused. This related to a search on 27 June 2005. I will not refer to all of the evidence, but it may be, in general terms, be described, in its relevant part, as dealing with the finding of pistols and rifles in the home at 1 Gallipoli Street, Condell Park. 4 Some of the weapons were located in a firearm safe in the lounge room and others were located in a safe in the master bedroom. The weaponry was tendered on an individual basis and the jury had the opportunity of inspecting the weapons on an individual basis. Some days ago, various applications were received by the Court from media interests. Those concerned included the ABC, SBS, The Telegraph and Channel Nine. Each application sought access to the Elomar weaponry, if I may so describe it, and further sought permission to film or photograph the weapons for the purpose of inclusion in television or newspaper reports concerning the evidence in the trial. 5 Senior counsel for Mr Elomar, Mr Dalton, has opposed the making of any order that would enable the media to film or photograph the weapons, and to display film or photos in the press or on television. Mr Dalton queried the Court's power to make such an order and argued, in any event, the publication of the resultant photographs would be prejudicial to his client before the jury in a number of respects. 6 Initially, Mr Dalton argued that the Court did not have power to grant the media access to the exhibits, but he later conceded that this was not the position. His original argument had focussed on the rather narrow language of s 314 of the Criminal Procedure Act 1986. 7 Essentially, however, Mr Dalton's overall concern was that the photographs or film of the exhibits would show the weaponry in one group, whereas they had been located in different parts of his client's premises and had been tendered individually before the jury. This situation was likely, Mr Dalton argued, to engender prejudice of one kind or another. 8 At the outset, Miss Larissa Cummings, an employee of The Daily Telegraph, had asked the Court's leave to appear for her client on the application. The position, however, altered on 24 November 2008 when Mr Dawson of counsel appeared for the ABC, SBS and Channel Nine. Mr Dawson's submissions may be regarded as in the interests of media generally. Counsel took issue with Mr Dalton's arguments and submitted that photography or filming access should be permitted and that the photographed weaponry should be permitted to be displayed as part of any fair and accurate report of the court proceedings. 9 Consequently, there are three issues for determination. One, does the Court have the power to allow the media access to the weapons which have been admitted into evidence as exhibits in the trial? Two, does the Court have the power to allow the media, as part of that access, to photograph or film the weapons? (I interpolate that it is to be assumed, for the purpose of answering these preliminary questions, that access to and/or photography of the exhibits is required for the purposes of the media compiling a fair and accurate report of the trial proceedings to date.) Three, on the basis that the Court has the relevant powers, should the procedure sought by the media interests be allowed? 10 As to question one, Mr Dalton correctly, in my view, ultimately conceded that such a power existed. It does so within the framework of the Court's inherent power to ensure that the proper interests of the administration of justice are recognised and served throughout the trial. The only further comment required in relation to this first question is that, although it is not necessary for this decision, I do not consider that s 314 of the Criminal Procedure Act has any bearing on the existence and extent of my power as trial judge to permit the media to have access to the exhibits in question. Section 314 is a relatively confined power conferring jurisdiction on the Registrar to allow access to the media to documentary material in his or her possession. The section says nothing as to the extent of the Court's power to allow access in an appropriate case to exhibits of all kind that may be in its possession or control during the trial. 11 In relation to the second question, Mr Dalton has been unable to point to any statutory enactment, rule of Court, or authority for that matter, which would limit or prohibit the Court's power to permit and extend the provision of media access to an exhibit so as to include photographing the item. The highest the argument could be put was that there was no positive statutory provision permitting the procedure, nor was there any authority sanctioning its existence or speaking as to its exercise. Mr Dalton made some brief submissions regarding the undesirability of allowing filming in the courtroom, that is, filming of the actual trial proceedings, but that, to my mind, is a different question. 12 I have come to the clear conclusion the procedure sought on behalf of the media is a procedure the Court may permit in appropriate circumstances. There are essentially four reasons: 13 First, the principle of open justice points to such an outcome. The principle of open justice is fully described by Chief Justice Spigelman in John Fairfax Publications v District Court of New South Wales (2004) 61 NSWLR 344 at paragraphs 35 to 36. I have referred to this in earlier decisions and there is no need for me to repeat it in this decision. 14 The Court of Appeal, however, endorsed the remarks of McHugh J in John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476G to 477B. It is worth repeating part of that passage. McHugh J said: "The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom (my emphasis)." 15 The issue, of course, in both the cases to which I have referred, was the making of a suppression or non-publication order. That is not the case here, but the principle, nevertheless, has wide application to a number of matters that regularly come before the courts. The principle of open justice does not create a free standing right to access or its components; John Fairfax Publications v Ryde Local Court (2005) NSWLR 512 at 521 para 29 per Spigelman CJ. But it recognises the desirability of permitting access in appropriate cases where the access will support the preparation of a report of what has happened in the courtroom during its public sittings. The case books are replete with statements at the highest level emphasising the desirability, the necessity, indeed, for court proceedings to be conducted in the full glare of public gaze, including that aspect of it reflected in media reportage. 16 In Australian Securities Investment Commission v Rich, [2001] 51 NSWLR 643; [2001] NSWSC 496 Austin J referred to the following remarks of the Full Federal Court in R v Davis (1995) 57 FCR 512 at 514: "Whatever the media's motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government. Except in extraordinary circumstances the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time or even the inclination to attend courts in person, as a practical sense this principle demands that the media be free to report what goes on in them." 17 The second reason relates to the guidance to be derived from the Supreme Court Practice Note SC General 2. I agree with Hoeben J's remarks in HIH Insurance Limited (In Liquidation) v General Reinsurance Limited, unreported, SCNSW 10 March 2006, that this Practice Note does no more than offer guidance as to how the discretion vested in the Court to allow access is ordinarily to be exercised. It is, of course, no more than a Practice Note. It is not a Rule of Court. But in its terms, it presupposes the ability of the Court to allow access to non-parties to material in court files. Interestingly, it contemplates that access to non-documentary material, admitted as evidence, may be permitted; (see para 7 and its contents in the Practice Note.) 18 Once again, while the guidance offered by the Practice Note does not confer a right on the media to access, it supports the possibility that, in an appropriate case, the Court may, within the exercise of its proper discretion, mould its orders so that material in non-documentary form may in a practical way be adequately accessed. It is no great leap to move from the contemplation of, for example, providing a photocopy of a document where access has been granted, to the prospect of permitting the photography or photographing of a non-documentary object. How, otherwise, one might ask, are the members of the public, who neither have the time nor inclination to attend court, to understand the evidence where that evidence relates to a non-documentary object? Is it not appropriate, in general terms, allowing of course that it is an appropriate case, for a photograph of a non-documentary object to be provided or arranged as part of the terms of access so that the public can understand what is being reported? 19 The third reason relates to the media access provisions in the Federal Court Rules and the decision of the Federal Court in what has been described as the "media access" cases. I do not propose to set out those rules or indeed to refer in any detail to the cases. That is because those rules, and those cases relate specifically to that jurisdiction. But it is of interest to note that Sackville J in Seven Network Limited v News Limited (No 9), 5 October 2005, reference being Seven Network Limited v News Limited (2005) FCA 1934, in examining a proposed protocol for access to the media to documentation in the C7 trial, said at paragraph 27: "Nonetheless, it seems to me that unless the interests of justice require otherwise, this Court would ordinarily take the view that a non-party should have access to all non-confidential documents and other material admitted into evidence. I say 'ordinarily' because the circumstances of each case will vary and the exercise of the discretion under Federal Court Rules Order 47, Rule 6 will have to take into account the particular circumstances of the case." 20 His Honour went on to hold that an appropriate "touchstone" for determining the question of access by non-parties was whether the documents or other material had been admitted into evidence. His Honour thought that, in general, the application of this principle would serve the interests of open justice. 21 It is true that none of the Federal Court cases appear to grapple directly with the issue confronting me, but I think that considerable degree of support emerges from those authorities, and from the burgeoning recognition that it is appropriate to mould procedures so that appropriate protocols can be put in place for the media to have access to material tendered in court to enable proper reporting to take place. 22 There are obvious limitations on this power, but I do not doubt that the power exists. It is not appropriate for me in this decision to endeavour to state the limitations of the power, or to state the circumstances in which the power should not be exercised. Clearly, there comes to mind issues such as confidential material, and material that is commercially sensitive. In a criminal trial there may be issues arising from the fact that prejudice will be, or may likely be, sustained if access is granted to particular exhibits. Prejudice, of course, can arise in any number of ways. I mentioned, for example, yesterday during argument the situation where the victims of a crime, or the family of a deceased person in a murder trial, might need to be taken into account in a particular situation. These are but examples of the necessary caution with which the Court needs to move in this area. (See R v XU No 1 BC 200500412 (at 43-44) per Kirby J. 23 The fourth and final reason can be briefly stated. I agree with Mr Dawson that, essentially, the present problem does not involve a matter of principle. It is simply an extension of the existing method of facilitating access to the media in respect of material already in evidence. Anecdotally, the Court knows that photographs of non-documentary exhibits have been made in a number of cases over the last few years, and it is my general understanding that this extends not only to the Supreme Court, but to the District Court as well. It may well be, however, that this has occurred by arrangement, and without the need for argument as has occurred here. But, essentially, I accept Mr Dawson's submission that there is no broad matter of principle involved in determining whether this power exists. It is simply a matter of moulding, where appropriate, new procedures to those which are well established. 24 I turn to the third question, and that is whether the discretion should be exercised in favour of the media applications. First of all, I proceed on the assumption that a fair and accurate report of this trial will occur. That is an assumption I think the courts are entitled to make (see, for example, Australian Securities Investment Commission v Rich (2001) NSWLR 496 per Austin J at para 40; see also The Queen v LMV, unreported, NSWSC 15 November 1999 per Studdert J at para 18; and Barrett J in Jagelman v Sheahan 13 May 2002 BC 200202390 [2002] NSWSC 419). 25 Secondly, I address the issue of onus. Although it may be properly said that the onus falls on the applicant to demonstrate that access, including photo access, should be granted, this is an onus easily displaced by the obvious presence of the principle of open justice. The media have no absolute right to access, as I have already said, but, on the other hand, their proper purpose in seeking to obtain access to permit the preparation of a fair and accurate report of court proceedings plainly establishes a legitimate interest, at least on a preliminary basis. Nothing has been put to displace that legitimate basis for the present application, and I am satisfied that the preliminary onus, as I shall call it, has been satisfied. 26 As I indicated earlier, Mr Dalton's principal concern is with prejudice. There were four aspects argued in the submissions in the present matter. These were:

(a) The argument that a photograph of the weapons in a group would not adequately reflect the evidence. In that sense, photographs of that kind, or films of that kind, might deceive the jury into believing the weapons were found in a group, as represented by the photographs or film.

(b) The second argument advanced was that the appearance of the weapons in the media in photographic form might well spark a public debate about the undesirability of this amount of weaponry being held by one individual. Such a debate, if it were to occur, would, or could, provide a distraction to the jury and divert it from its true task.

(c) The public debate, and perhaps even outcry, engendered by publication of the photographs of the weapons, might flow on to affect the integrity of the evidence that is to be given by some of the witnesses; for example, people owning properties where the accused are alleged to have attended shooting and camping trips.

(d) Finally, the argument was made that the very presence of photos of the weapons might simply serve to give undue emphasis to them in the mind of the jury. 27 As to (a), the jury has heard very clear and definite evidence about where the weapons were found, and has heard evidence as to their condition and to their safekeeping at the time when they were found. This evidence was given quite recently. The weapons were themselves tendered individually and, with the consent of the parties, the members of the jury were permitted to handle and examine the weapons on an individual basis. I do not think there is any real, or even likely, possibility that the jury would fail to remember the evidence that has been given before them. In any event, I would regard it as my obligation to give an appropriate direction, if the films do appear in the media, to reinforce the situation, and to appropriately direct the jury. 28 As to the second argument, I consider that it is entirely speculative, and I do not think it is at all likely that some type of public debate will emerge to such an extent as to become a distraction. Once again, if that were to happen, a direction could be given to the jury, and I am confident they would heed it. 29 As to the third matter, I do not consider this to be even remotely possible. 30 As to the fourth matter, once again, I would simply say that I do not consider that the appearance of the weapons, even in group form, in the media will result in a jury giving undue emphasis to the exhibits. If for any reason it was thought necessary to do so, of course a further direction could be given so that did not happen. 31 For these reasons, I conclude that there is no valid reason, in the circumstances of this matter, for declining to grant to the media photographic or film access to the particular exhibits, nor is there any reason for ordering that the photographs or films may not be displayed to accompany any fair and accurate reporting of the evidence in the trial. 32 This is a trial where there will be a degree of restriction on publication of material. The National Security legislation will require a closed court on occasions, it will require the use of pseudonyms, and it will require the redaction of transcript. By way of contrast, the court should encourage, in my view, a degree of cooperation between the parties and the media so as to allow reasonable access to material emerging in open court sessions. This is not to encourage prurience or sensationalism. It is, however, to encourage fair and accurate reporting in a trial that will legitimately be of interest to the general public. 33 That really concludes the formal part of this judgment. 34 I order that access be granted to the exhibits and that the media may photograph or film the weapons and may use the photographs or films so taken as part of any fair and accurate report in relation to the evidence taken in the trial. 35 I would like to add this: It is no part of the judgment, as I say, but I would encourage the parties, and of course the Crown is in evidence at this stage, particularly the Crown, to support some type of informal protocol between itself and the media whereby there is a level of communication between the Crown and the media in responsible fashion so that the media is generally made and kept aware of the schedule of witnesses, and the programming for the taking of evidence in the trial. 36 Secondly, I think that the media should feel free to ask the Crown for copies of any documentary exhibits and also to indicate whether there are other copy exhibits (photographs for example) they may wish to secure for the purpose of copying or photographing. Where it appears to the Crown, as it may well clearly appear, that there might be some dissention on that point from the accused, the Crown should notify the accused of the situation so that any application can be made to the Court. 37 By making these remarks, I am not suggesting any encouragement for the proliferation of unnecessary arguments. I think everyone is well aware of the areas where prejudice might possibly be entertained as capable of being sustained in the trial. But, subject to those considerations I think there should be encouragement by the Court to a reasonable degree of cooperation with the media. It is no part of my task to nominate anyone to be on the team, but if I were minded to do so I would be looking directly at Mr Bellew SC to ease the burden on the senior Crown Prosecutor and I would be looking, even though he is not here, at Mr Dalton, because he has so adequately represented the interests of not only Mr Elomar but all the others on this particular argument.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.