R v Qaumi & Ors (No 16) (Internet “take down” orders) [2016] NSWSC 319

Supreme Court New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 16) (Internet "take down" orders) [2016] NSWSC 319 Hearing dates: 16 March 2016 Date of orders: 24 March 2016 Decision date: 24 March 2016 Jurisdiction: Common Law Before: Hamill J Decision: (1) ABC to remove from its website an article published on 27 October 2014 entitled "Brothers 4 Life Four alleged gang members charged with Mahmoud Hamzy's shooting murder". (2) ABC News to remove from its website an article published on 12 December 2014 entitled "Brothers 4 Life Fifth alleged gang member in court, charged with Mahmoud Hamzy's murder". (3) The publisher of the Daily Telegraph to remove from its website an article dated 27 October 2014 entitled "Four charged with murders of Mahmoud Hamzy and Joe Antoun". (4) The publisher of the Daily Telegraph to remove from its website an article dated 28 October 2014 entitled "Did legal clerk [Witness M] plot a gangland murder?" (5) The publishers of the Sydney Morning Herald to remove from its website an article dated 10 January 2014 entitled "Farhad Qaumi arrest: Brothers 4 Life shootings linked to power struggle police say". (6) The publishers of the Sydney Morning Herald to remove from its website an article dated 27 October 2014 entitled "Brothers 4 Life members charged with murder of Joe Antoun and Mahmoud Hamzy". (7) The publisher of the Sydney Morning Herald to remove from its website an article dated 28 October 2014 entitled "Contract to Kill: The story of an alleged $200,000 hit". (8) The publishers of the Sydney Morning Herald to remove from its website an article dated 19 June 2015 entitled "Brothers 4 Life: Mega-trial approved". (9) The publisher of the website www.aussiecriminals.com.au to remove an item dated 27 October 2014 entitled "Brothers for Life gang come crashing down". (10) The publisher of the website www.Perthnow.com.au to remove from its website an article dated for 4 June 2015 entitled "Alleged B4L Members Laugh in Court". (11) The removal of orders (1) to (10) is to occur by 4 April 2016. (12) Orders (1) to (10) apply throughout the Commonwealth of Australia. (13) The orders are to continue until the conclusion of the trial of Jamil Qaumi and others scheduled to commence on 4 April 2016 or until further order. Catchwords: CRIMINAL LAW – non-publication – take down orders – removal of online internet articles – contamination of jury pool – pre-trial publicity – googling juror – internet searches – futility – World Wide Web – sensational and tendentious reporting – publication of "vast criminal history" – gangland violence – publication of charges severed from indictment – whether take down orders necessary –whether orders futile – where similar material published on other websites – where material published overseas – limits of jurisdiction – enforceability of orders – jurors complying with directions – examples of jury misconduct – "jurors behaving badly" – juror inquiries Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Criminal Procedure Act 1986 (NSW) Jury Act 1977 (NSW) Cases Cited: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 293 ALR 384 Folbigg v R [2007] NSWCCA 371 Gilbert v The Queen [2000] HCA 15; 201 CLR 414 R v Benbrika [2009] VSC 142 R v Debs [2011] NSWSC 1248 R v K [2003] NSWCCA 431; 59 NSWLR 431 R v Perish; R v Lawton; R v Perish [2011] NSWSC 1102 R v Qaumi & Ors (AVL) [2015] NSWSC 1711 R v Qaumi & Ors (No 3) (Severance and separate trials) [2016] NSWSC 15 R v Qaumi & Ors (No 9) (Court closure) [2016] NSWSC 171 R v Qaumi & Ors (No 14) (Judge alone application) [2016] NSWSC 274 R v Qaumi & Ors (No 15) (Non-publication order) [2016] NSWSC 318 R v Skaf [2004] NSWCCA 37; 60 NSWLR 86 Texts Cited: Bagaric, Mirko, "The community interest in bringing suspects to trial trumps the right to an impartial decision maker – at least in Victoria" (2010) 34(1) Criminal Law Journal Burd, Roxanne and Horan, Jacqueline, "Protecting the right to a fair trial in the 21st century – has trial by jury been caught in the world wide web?" (2012) 36 Crim LJ 103 Gumbert, Jnana, "Jurors Behaving Badly" (2008) Law Society Journal