New South Wales Supreme Court CITATION : Regina (C'Wealth) v Baladjam & Ors [No 45] [2008] NSWSC 1464 HEARING DATE(S) : 08/09/08 JUDGMENT DATE : 9 September 2008 JURISDICTION : Criminal JUDGMENT OF : Whealy J at 1 DECISION : Order that Channel 7 be restrained from broadcsting the news item represented in Exhibits 4 and 5 and proposed to be broadcast on 6pm News on 9 September 2008. Liberty to apply on 2 hours notice. Costs reserved for Motion stood over generally. CATCHWORDS : CIVIL LAW - Injunction to restrain media from publishing a broadcast on its national news program - Contempt of Court - Principles applicable to restrain threatened contempt of Court. Hinch v Attorney General (198) CLR 15 at 41-42 CASES CITED : Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 Prothonotary v Collins (1985) 2 NSWLR 549 Regina (C'Wealth) v Omar BALADJAM [No 45] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR PARTIES : Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA FILE NUMBER(S) : SC 2007/2397001;; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001 G. Bellew SC; C. Donnell; Ms S McNaughton - Crown D.R. Sibtain - Channel 7 M Buscombe SC; R Pontello - Accused Baladjam C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho D Dalton SC; E Ozen - Accused Elomar COUNSEL : Ms D Yehia; Ms S Beckett - Accused Hasan Hale SC; G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Sharrouf S Hanley; - Accused Touma Commonwealth DPP Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho SOLICITORS : Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST WHEALY J PARRAMATTA: TUESDAY 9 September 2008 2007/2397001 - Regina v Omar BALADJAM [No 45] 2007/2395001 - Regina v Khaled CHEIKHO 2007/2398001 - Regina v Moustafa CHEIKHO 2007/2399001 - Regina v Mohamed Ali ELOMAR 2007/2400001 - Regina v Abdul Rakib HASAN 2007/2452001 - Regina v Mohammed Omar JAMAL 2007/2454001 - Regina v Mirsad MULAHALILOVIC 2007/2396001 - Regina v Khaled SHARROUF 2007/2455001 - Regina v Mazen TOUMA JUDGMENT - Injunction - Application to further restrain Channel 7 from publishing a broadcast item on its National News program – Contempt of Court – Principles applicable 1 HIS HONOUR: Late yesterday afternoon, I was asked to entertain the granting of an order to restrain the publication of a programme which was scheduled to be broadcast on Channel 7 last night. I gave a hastily culled together decision in which, at the outset, I attempted to set out my understanding generally of the authorities applicable to such an issue. Today I have been asked to consider an amended programme, one which has been amended in a number of significant respects to take account of matters that I pointed to in the decision given yesterday. This present decision must, of necessity, be given just as rapidly, and no doubt expressed imperfectly, for which I offer my apologies. But I see no need to express any differently the principles that I attempted to outline hurriedly in yesterday's decision. At issue is an injunction restraining a threatened contempt of court. I am content to accept, as Mr Sibtain suggested in argument, that one statement of the guiding principle relevant to the present exercise is to be found in the statement of Wilson J in Hinch v Attorney-General (1987) 164 CLR 15 at 41-42 where his Honour concluded by saying that: "The Court will curb free speech, only to the extent that it is necessary to prevent a real and substantial prejudice to the administration of justice." 2 Yesterday, I was somewhat hampered in that, while the parties were able to give me a text of the programme that was scheduled to be broadcast last night, I was not able to see the programme itself. There were proper reasons for that and I offer no criticism in that regard. But I do repeat that I was hampered because I was unable to view the programme. I had to confine my observations to the text that was to accompany the programme. An examination of that text threw up the undisputed fact that there were a number of serious inaccuracies in relation to the statements in the text which purported to describe the nature of the case that would be presented by the Crown. I pointed out that those inaccuracies were highly prejudicial, and it is fair to say they were paramount in my decision to grant the order that was made. 3 The legal representatives for Channel 7 have today placed before the Court a DVD, Exhibit 4 and a text, Exhibit 5. The DVD shows the Court precisely what the proposed programme for tonight's broadcast is, and Exhibit 5 gives me the detail of the script. The script is divided into two parts, the first being an introduction which the news reader will read out before the broadcast proper. The second part is the text that will accompany the broadcast itself. As I say, I have now had the opportunity and advantage of seeing virtually the entire programme by the playing of the DVD. 4 As I have mentioned, I had set out in yesterday's decision my understanding of the legal principles that are applicable, and I have endeavoured today, by reference to the brief observations of Wilson J in Hinch's case to encapsulate, as it were, the test to be applied. 5 Mr Hale of senior counsel who appears with Mr Scragg for the accused, has put the following propositions to me: First he says that the Court cannot disassociate the programme that is to be shown from the promotional material screened last week. In that regard he referred me to a decision of Hunt J, about 20 years, ago in Baltinos v Foreign Language Publications Pty Limited (1986) 6 NSWLR 85. The case, in one sense, is not directly in point, but Mr Hale seeks to use it to suggest that, in the present exercise in which I am engaged, I am entitled to look at and take into account the promotional material. 6 The promotional material took at least two forms. Its content appears in affidavits that I discussed in the judgment given yesterday. I do not propose to go to them in any detail. But one example is a voiceover that says, "They're accused of plotting a holy war to blow up Sydney. Now the would-be victims are being asked to pay millions to help the alleged terrorists". The script continues: "A 7 News exclusive reveals the hidden details and asks the government, why do we have to pay?" 7 I do not know what the reference to "hidden details" is, but overall the piece is certainly a promotion that would have interested quite a few viewers, I would think. Be that as it may, Mr Sibtain does take issue with Mr Hale on this point. He suggests that the fact that the programme now is so vastly different from that which was the subject of critical comment by me yesterday really means that the promotional material is, to use his phrase, dead and buried as an issue. 8 The second, and ultimately the main point I think made by Mr Hale was his submission that, overall, the TV broadcast that is proposed - and he adds the promotion to this point – cannot be categorised as a rational debate about Legal Aid for defendants in a criminal trial; rather he asked, is it not, because of the matters to which he made detailed reference, an out and out conveyance of a message that these men are guilty of serious terrorist offences, and that in those circumstances the granting of Legal Aid to them is "a real smack in the face" for Australians who were hurt and damaged by the Bali bombings. 9 Mr Hale suggests that such an approach to the matter is vindicated by the impact of the whole of the content of the programme. Mr Sibtain, on the other hand, says that this is an unfair way of viewing the programme. He says that the "amended" programme, shorn of the inaccuracies mentioned in yesterday's decision, simply conveys a juxtaposition of two conflicting notions that present, undoubtedly, an irony; but nevertheless the juxtaposition is by its nature, an appropriate comment on matters of genuine public interest. 10 Mr Sibtain, I should add, has provided me with very considerable and detailed written submissions. In deference to the detail of those submissions, I must say I have only had a very brief time to look at them. I do not however, regard this as a final hearing today. I am not determining the ultimate outcome of a contempt case. I am merely being asked on an interlocutory basis to restrain a programme that is different in some respects, from the programme the broadcast of which I restrained yesterday. That is the approach I take to this hearing. Mr Sibtain's written submissions, however, do raise a number of complex matters, but essentially in the end, his submissions require me to ask precisely the same question as I identified yesterday. It is essentially the same question that was posed by Wilson J in Hinch's case. It is not a theoretic or academic question. I have to look at it in the context of a serious criminal trial, one that is shortly to commence and where, if convicted, the accused face a maximum penalty of life imprisonment. 11 The position seems to me to be quite different from the position dealt with by McHugh J in Prothonotary v Collins (1985) 2 NSWLR 549. In that case the Court was dealing with a situation that had developed outside Darlinghurst Court complex back in October 1984. At that time there were a number of courts in the complex hearing criminal cases. Some of them involved the Supreme Court and others involved the District Court. Mr Collins had been outside the Darlinghurst Court complex speaking through a loud hailer about police verbals, and he and other people were handing out copies of a pamphlet entitled "What is a verbal?" It was in that context that his Honour at page 566 said: "I do not think that in any relevant sense the distribution of the pamphlet to a juror or potential juror without anything else is an interference with that person as a juror or potential juror. If a person is not engaged or likely to be empanelled in a trial where the subject matter of the pamphlet is in issue, his position is no different from any ordinary member of the public. The handing of the pamphlet to him can have no effect on the administration of justice, where there is no evidence that the matters contained in the pamphlet are the subject of pending proceedings with which he is likely to be concerned. Time again the courts have said there can be no contempt unless proceedings are pending." 12 As I say, that position cannot be compared to the present one, because here there is a trial pending and the empanelment of the jury is only a matter of weeks away. The trial itself involves the very men, or some of them, who are shown in the broadcast and the broadcast itself is concerned with their trial specifically, and the furnishing of Legal Aid to them in connection with that trial. 13 I consider that I am now in a position of significant advantage to the situation I found myself in yesterday. This is because, not only do I have a text of the programme, I have the programme itself. I accept, as Mr Sibtain has put to me, that the amended text for the proposed programme has been shorn of the inaccuracies that infected the text I examined yesterday. Contrary to Mr Sibtain's submission however, I accept that, to a degree, the proposed programme may be capable of being influenced in its capacity to have a real and substantial prejudice to the administration of justice by the promotional material. I say "to a degree" because I have a very clear view that the present matter can be decided on the basis of the programme itself. In some circumstances, it might be necessary to consider the combined effect of the promotion and the proposed programme, but I am content to essentially decide the present matter on the basis of the programme itself. 14 I would firstly observe that potential audiences for this programme clearly embrace people who are likely to be involved as potential jurors in the empanelment of the jury for this trial, and indeed people who will, in fact, ultimately be selected as jurors for this trial. Secondly, I would make the general observation that television audiences do not necessarily examine the text accompanying footage with - if I may mix my metaphors - a fine-toothed comb. They do not have a transcript, nor do they have the analytical skills, patience or attention to detail of a trained lawyer, especially a defamation lawyer. For that reason an impression of guilt may be forcefully conveyed by images, by accompanying music, by the process of cutting and editing, by the selection of footage itself, or by the very "tone" of the debate, rather than by the actual words used. 15 The images that are shown on television are a powerful conveyor of impressions, and sometimes they can be impressions that will, or can belie, or even be at odds with, the actual words chosen to accompany them. Consequently a text accompanying a programme may often be capable of satisfying the lawyers for the TV channel or the media outlet that all is well with the world; whereas many viewers will draw a conclusion that is quite at variance with the words that have been approved. 16 There is undoubtedly a proper matter for debate lurking beneath the words and imagery of the programme contained in Exhibits 4 and 5. That debate might be said to be this: Should the community provide funds of a significant nature for the defence of people tried with serious criminal crimes? But this programme, in my view, viewed as a whole, is likely to travel well beyond such a debate and leave a very distinct impression of guilt. It clearly tilts the debate very much to one side, and in so doing inevitably proclaims a "cri de coeur" that suggests a negative answer to the question of public debate I have identified. Moreover, it forcefully slants the question to this one: should we pay funds of this significance for persons who have committed terrorist offences? I point in particular to the images of one of the accused, clearly enough having been arrested at his home, being taken away in handcuffs. I point to the images of the Court itself and its surrounds with sniffer dogs, a veritable army of police, and a great deal of Corrective Services Officers with walkie-talkies on their shoulders. In particular, I point to footage of an accused person, obviously one of the accused, in the cells of this very complex. I pause to say I am completely astonished at such footage having been obtained and I wonder how this came to be. Having asked that question, however, I simply do not know the answer. Those images themselves, indeed the whole broadcst, collectively point very strongly to a suggestion that the men involved in this trial are guilty of an offence, a serious terrorism offence. 17 Juxtaposed with all that is the image of Mr Erik de Haart, a person who has been damaged by the Bali bombings. One's feelings are drawn immediately to him, and great sympathy, is evinced. There is imagery, associated with his presence in the programme, of bombings, terrorism, and buildings in Bali burning fiercely from the fire of an explosion. I could not help but notice, even though it is not part of the material to be broadcast, that there is a shorthand description at the beginning of the DVD which, despite its misspellings, describes the content as a "terror package". I thought that was not an unfair way of looking at the programme. As I say, that is not part of the image to the broadcast, but I could not help but consider that it was a fairly accurate portrayal of the overall impact of this broadcast. 18 Of course, Mr Sibtain is entirely correct, if one were to look simply at the text, one might conclude that it is not unfair. But I do not think that one can divorce the text from the image and I think the image is the more powerful component of the two. The text follows it as the tail of a dog follows the dog. My strong feeling is that the overall impact of this programme is that it is one that will have the capacity, and a real tendency, to impose substantial prejudice to the administration of justice in relation to the particular trial of these men. 19 The proximity of the trial, the likely breadth of the numbers of the jury panel, the fact that they will mingle and converse over four or five days before empanelment, make it in my view highly undesirable that the programme and its content appear on national television at this time. It might have been a different matter if the program were being broadcast some months ago. But the prejudicial damage arising from this particular programme would, in my opinion, be likely to have a real impact on the people who will be selected as jurors in this trial. And that impact will occur long before any direction to cure prejudice can be given. I strongly believe in the ability of proper directions to meet prejudice head on, but in this instance, rare though it be, I am satisfied that directions to the jury panel, and to the ultimate jury, simply would not suffice. 20 Proximity of course is not the only factor. It is however, an important one in this case. Essentially though it is my reaction to the overall impact of the programme that brings me to the view that I should order that it not be shown tonight, as is contemplated, and I propose to make an order to that effect. Is there any reason why I should not make an order in similar terms to that made yesterday? Discussion Ensued 21 HIS HONOUR: I did propose to stand the matter over and you can see whether there is likely to be anything else to be ventilated, but I would have thought an order that Channel 7 be restrained from broadcasting the news item represented in Exhibits 4 and 5 and proposed to be broadcast this evening in the Channel 7 news; would that be sufficient? Discussion Ensued 22 HIS HONOUR: I think that order will be sufficient. I will grant liberty to apply on two hours notice and I will stand the matter over generally and reserve the question of costs both from yesterday and today. Discussion Ensued 23 HIS HONOUR: What sort of order should I make. "Until further order"? BELLEW: Until further order of the Court that your Honour's judgment not be published. 24 HIS HONOUR: And I grant liberty to all parties to approach me if they want that to be lifted. I think that is the order I will make. Exhibits to be retained. ********** 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.