R v AC (No 5)

[2016] NSWSC 355

Supreme Court

New South Wales

Medium Neutral Citation:	R v AC (No 5) [2016] NSWSC 355
Hearing dates:	29 March 2016
Date of orders:	29 March 2016
Decision date:	29 March 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	No publication of evidence and submissions in respect of the current sentencing proceedings against Witness M.
Catchwords:	CRIMINAL LAW – non-publication of evidence in sentencing hearing – evidence relevant to lengthy trial about to commence – orders necessary to preserve the integrity of trial proceedings – no question of principle
Category:	Procedural and other rulings
Parties:	Regina (Applicant) Witness M (Respondent)
Representation:	Counsel: K McKay & P Hogan (Crown) H Dhanji (Witness M)   Solicitors: Solicitor for the NSW DPP(Crown) Oxford Lawyers (Witness M)
File Number(s):	2014/90422; 2014/315510
Publication restriction:	No publication until further order of the court

EX tempore Judgment (revised)

1. Throughout the course of what have been lengthy pre-trial hearings in relation to, what is now, five accused men, there have been a number of applications for, and orders made in relation to, the non-publication of certain parts of the evidence: see, for example, R v Qaumi & Ors (No 8) [2016] NSWSC 184 and R v Qaumi & Ors (No 9) [2016] NSWSC 171.

2. Most recently, I published two judgments (1) in respect of the non-publication of all of the evidence in the trial that is about to commence in order to protect the integrity of a trial that is scheduled to be conducted sequentially with that trial and (2) ordering that certain material be removed from the internet: R v Qaumi & Ors(No 15) [2016] NSWSC 318 and R v Qaumi & Ors(No 16) [2016] NSWSC 319.

3. In the course of this morning’s sentencing hearing, there has been a great deal of evidence in relation to the events which are the subject matter of the trial that is about to commence, that is on Monday, and additional material which is highly prejudicial to at least one of the accused, that is Farhad Qaumi. I am aware of previous publicity surrounding the case, including publicity that emerged when I sentenced a co-offender known in the judgment as NK and known in the proceedings as Witness L: R v NK (No 3) [2015] NSWSC 1257.

4. Having heard the evidence this morning, and in anticipation of the evidence that will be given this afternoon, I have come to the conclusion that making a non-publication order for a limited amount of time is necessary to prevent prejudice to the proper administration of justice and specifically to avoid prejudice to the accused who are to start to face trial next week.

5. If necessary, I would indicate that I am also satisfied it is otherwise necessary in the public interest for the order to be made and that the public interest significantly outweighs the public interest in open justice. Those grounds are taken from s 8(1)(a) and (e) of the Court Suppression and Non Publication Orders Act 2010 (NSW) (“the Act”).

6. In coming to that conclusion, I have taken into account section 6 of the Act which provides that a Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. I have written in some detail on the tension between the principle of safeguarding the public interest in open justice and the principle that accused persons are entitled to a trial free of prejudice: see R v Qaumi & Ors (No 15).

7. With the trial so close, so shortly to begin, I have come to the conclusion that I have stated in terms of s 8(1)(a) and 8(1)(e).

8. Accordingly, I order that there is to be no publication of the evidence and submissions in respect of the current sentencing proceedings against Witness M.

9. I indicate that, pursuant to s 12, the order will remain in effect until the occurrence of a fixed event, being the conclusion of the two trials involving Mumtaz and Farhad Qaumi, or until an order is made that the second trial be conducted by judge alone. Also for the purpose of s 11, I indicate that the non-publication order is in force throughout the Commonwealth of Australia. I note that the media has not been here to be represented and an application for variation or revocation of that order will be entertained if it is considered necessary by the media interests to make one.

**********