R v Hawi (No 2) - [2011] NSWSC 1648

Supreme Court

New South Wales

Medium Neutral Citation: R v Hawi & ors (No 2) [2011] NSWSC 1648
Hearing dates: 21 April 2011
Decision date: 29 April 2011
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Application refused

Catchwords: CRIMINAL LAW - procedure - witnesses - open justice and fair trial principles - "right" to confront accusers - witnesses in fear - public interest immunity and s 130 Evidence Act - anonymous witnesses - inadequate evidence to justify making pseudonym order
Legislation Cited: Evidence Act 1995
Evidence (Audio and Audio Visual Links) Act 1998
Jury Act 1977
Cases Cited: Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
BUSB v R [2011] NSWCCA 39
D v National Society for the Prevention of Cruelty to Children [1978] AC 171
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Dodds v The Queen [2009] NSWCCA 78; (2009) 194 A Crim R 408
Eastman v The Queen (1997) 76 FCR 9
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Jarvie v Magistrates' Court of Victoria [1995] 1 VR 84
John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344
Maryland v Craig 497 US 836 (1900)
McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468
R v Davis [2008] UKHL 36; [2008] AC 1128
R v Davis; R v Ellis [2006] 1 WLR 3130
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
R v Hughes [1986] 2 NZLR 129
R v Lowe (1997) 98 A Crim R 300
R v Murphy [1990] NI 306
R v Ngo [2003] NSWCCA 82; (2003) 57 NSWLR 55
R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331
R v Wilkie; R v Burroughs; R v Mainprize [2005] NSWSC 794; (2005) 193 FLR 291
Smith v Illinois 390 US 129 (1968)
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Witness v Marsden & Anor [2000] NSWCA 52; (2000) 49 NSWLR 429
Young v Quin & Ors (1985) 4 FCR 483
Texts Cited: David Lusty, 'Anonymous Accusers: An Historical & Comparative Analysis of Secret Witnesses in Criminal Trials' (2002) 24 Sydney Law Review 361
Ian Dennis, 'The Right to Confront Witnesses: Meanings, Myths and Human Rights' [2010] Crim LR 255 at 257
Category: Procedural and other rulings
Parties: Commissioner of Police
Regina
Mahmoud Hawi
Christian Adam Menzies
Farres Abounader
Canan (aka Ishmail) Eken
Usama Potrus
Zoran Kisacanin
Tiago Costa
Maher Aouli
David Padovan
Representation: Counsel:
Mr R Bromwich SC with Mr R Bhalla (Commissioner of Police)
Ms N Adams with Ms H Roberts (Crown)
Mr P Dunn QC (Hawi)
Mr J Stratton SC (Menzies)
Mr J Trevallion (Abounader)
Mr P Young SC (Eken)
Mr J Gordon (Potrus & Kisacanin)
Mr K Kyriacou, Solicitor (Costa & Aouli)
Mr A Conwell (Padovan)
Solicitors:
Crown Solicitor (Commissioner of Police)
Solicitor for Public Prosecutions (Crown)
Sid Hawach & Co (Hawi)
Hunter Flood Pty Limited (Menzies)
Archbold Legal (Abounader)
Purcell Felton Lawyers (Eken)
Barakat Lawyers (Potrus)
Elie Rahme & Associates (Kisacanin)
Kiki Kyriacou Lawyers (Costa & Aouli)
Nyman Gibson Stewart (Padovan)

File Number(s): 2009/50087

Judgment

HIS HONOUR: The Commissioner of Police seeks orders to protect the real identities of all civilian witnesses, referred to in submissions as "innocent bystander witnesses". The Crown presently proposes calling 149 witnesses who are in this category. The Commissioner seeks an order that these witnesses give evidence under pseudonyms, and ancillary orders.

The trial is due to commence on 9 May 2011. There are nine accused, eight of whom are charged with murder. The indictment also contains charges of riot and affray. Eight of the accused are associated with the Comanchero motorcycle club. Mr Padovan was a member of the Hells Angels motorcycle club.

Very briefly, the matter involves two incidents which occurred at the Qantas domestic terminal at Sydney Airport at about 1.30pm on Sunday 22 March 2009. The Crown case is that there was considerable animosity between the Comanchero and Hells Angels clubs. Members of each club came together in the vicinity of Gate 5. A fight broke out. The alleged participants are charged with affray. A short time after this, the same, and more, members of each club came together in the departure hall. A wild rolling brawl occurred. The alleged participants are charged with riot. Mr Anthony Zervas, who was associated with the Hells Angels, received fatal injuries and died at the scene. Some of the accused are alleged to have been directly responsible for inflicting the fatal injuries. Others are alleged to be culpable for murder upon joint criminal enterprise principles.

That rather clinical description is necessary for an understanding of the case in legal terms. The following more graphic description by Mr Bromwich, senior counsel for the Commissioner, puts the case, in his submission, in more realistic terms for the consideration of the application:

"What we have here is two adversary bikie gangs having a running brawl in the middle of Sydney airport. Airports by their nature are places of high general security and a normally safe environment at any time of day. The fracas took place in front of a large number of the general public going about their ordinary business. On the Crown case that brawl was at least contributed to by certain individuals ringing for what could be styled as reinforcements and it's of course not really in issue as I understand it that a man was in fact brutally clubbed and stabbed to death. This is not a case of giving routine evidence about routine events or even routine criminal events. It's an extraordinary situation and in one sense quite unprecedented. It's not like any other case that readily comes to mind.

The Court's entitled to infer that this would have been a terrifying spectacle for any ordinary citizen and that any rational person observing that would have concerns about what might happen to them if they were to give evidence against persons prepared to engage in such activity. It's important to emphasise that this is a question of reasonable perception and reaction to a situation of unexpected and out of place extreme violence. ... [O]nly someone of unusual fortitude or irrational thought would not, in my respectful submission, be concerned for their safety in becoming involved in such a situation." (T81)

As I have said, the Crown proposes to call some 149 people in the "innocent bystander" category. They include people who happened to be on the plane upon which some of the Comanchero accused had flown from Melbourne to Sydney. It is alleged that the sighting on the plane by those accused of the president of the Hells Angels precipitated the incidents which occurred shortly following disembarkation in Sydney. There are also a large number of witnesses who happened to be within, or immediately outside, the terminal building.

I am given to understand that the witnesses who were on the plane will give evidence of the aggression exhibited by the Comanchero accused towards the Hells Angels president and the use of mobile phones by some of them to contact fellow members in Sydney. It is alleged, in effect, that this was a mobilisation of the troops to attend the airport. Some of the witnesses within this group are also expected to give evidence of what they saw within the terminal building after they had disembarked.

The Crown Prosecutor informed me that it is necessary for such a large number of witnesses to be called because different witnesses saw different aspects of the two incidents. There are, I am told, significant variations in the accounts they are expected to give. The Crown is concerned not to be selective about the testimony that is put before the jury but to present a picture that is as complete as can be, acknowledging that some of the witnesses assist the Crown more than others. Indeed, Mr Dunn QC, on behalf of the accused Hawi, indicated in the course of his submissions that some of the witnesses are helpful to the defence. The Crown is, of course, obliged to call all witnesses in a position to give evidence material to the issues regardless of whether it assists its case or not: Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 674.

It was submitted on behalf of the Commissioner that it would be injurious to the public interest for the real identities of the civilian witnesses to be disclosed, either in court or to any of the accused. Aside from some inadvertent slips, the identities of the witnesses have thus far not been disclosed. Identifying information has been redacted from witness statements. Fifty eight witnesses gave evidence at the committal hearing under a pseudonym. To date, numbers have been used to refer to the witnesses, but it is proposed that a name will be assigned to them for the purpose of the trial. It is acknowledged that there are a number of practical difficulties with this.

There are two people the Crown proposes to call who have pleaded guilty to offences of riot and affray and have been sentenced. To date they have been referred to as SP and AL. It is not suggested that any pseudonym order should be made in respect of these two witnesses.

Overview of the application and the opposition to it

It is the experience of the police that witnesses can, and often do, perceive themselves as being at risk if they give evidence against persons, or a class of persons, having notoriety for violence and disregard for the law.

In the present case, it is the police belief that disclosure of the witnesses' names will expose them, and their families, to the risk of threats and reprisals from the accused and their associates. It is also believed that the witnesses may be reluctant to give evidence if their identities are disclosed.

It is contended that revelation of the witnesses' names will not only prejudice these proceedings, but future investigations and other proceedings will be affected as well. That is said to be because if no protection is afforded to the witnesses in this case, people will be even more reluctant to come forward with information and agree to give evidence in any similar such case in the future.

Counsel for each of the accused objected to the proposed orders being made. The main submission was that there is no demonstrated need for the orders. It was submitted that acceding to the application would create a situation of irreparable prejudice for the accused in the minds of the jury. Mr Dunn also submitted on behalf of his client that there would be an inhibition of cross-examination of witnesses if their identities were withheld from the accused.

Legal basis for the application

It is common ground that the application falls to be determined under s 130 of the Evidence Act 1995. It is in the following terms:

130 Exclusion of evidence of matters of state

(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

(2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).

(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.

(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:

(a) prejudice the security, defence or international relations of Australia, or

(b) damage relations between the Commonwealth and a State or between 2 or more States, or

(c) prejudice the prevention, investigation or prosecution of an offence, or

(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or

(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or

(f) prejudice the proper functioning of the government of the Commonwealth or a State.

(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:

(a) the importance of the information or the document in the proceeding,

(b) if the proceeding is a criminal proceeding-whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor,

(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding,

(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication,

(e) whether the substance of the information or document has already been published,

(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant-whether the direction is to be made subject to the condition that the prosecution be stayed.

(6) A reference in this section to a State includes a reference to a Territory.

The application, in fact, extends beyond s 130. The section is concerned with "admitting into evidence information or a document". The Commissioner's application is for an order that "the true names of bystander witnesses are not to be adduced in evidence or otherwise disclosed in the course of these proceedings ". That would extend to the non-disclosure of the names to the accused or their representatives. The power to make an order that the names are not "otherwise disclosed" falls to be determined under the common law concerning public interest immunity. Nothing in a practical sense turns on this as the section closely reflects the common law: Eastman v The Queen (1997) 76 FCR 9 at 63.

The Commissioner contends that revelation of the names of the civilian witnesses would "prejudice the prevention, investigation or prosecution of an offence" (s 130(4)(c)) and thus relates to "matters of state" for the purpose of s 130(1).

Translating the submissions of the accused into the language of the statute, it is asserted that the "information" in question is the names and other matters going to the identification of the witnesses. The "public interest in admitting into evidence" this information is the interests of the accused in having a fair trial conducted in accordance with the principles of open justice.

I proceed in the determination of this question upon the basis that the Commissioner bears an onus of persuading me that the orders should be made and that he must do so on the balance of probabilities: s 142 Evidence Act .

Principles

The balancing exercise required by s 130, or under the common law principles of public interest immunity, requires consideration of a number of established principles, particularly principles of open justice and of a fair trial. There was no real dispute about matters of principle upon the hearing of the application. There was, however, considerable debate about their application in cases in which the Crown has sought in some form to suppress the identity of witnesses.

Principles concerning open justice and a fair trial were succinctly set out by Spigelman CJ in John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344:

[17] As often happens in a context involving fundamental principle, two such principles are in conflict and a judgment must be made as to which principle is to prevail in the circumstances. The principle of open justice and the principle of a fair trial each inform and energise many areas of the law, as I have sought to show in extra-judicial addresses. (See, J J Spigelman, "Seen to be done: the principle of open justice" (2000) 74 Australian Law Journal 290, 378 and J J Spigelman, "The truth can cost too much: the principle of a fair trial" (2004) 78 Australian Law Journal 29.)

[18] It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial, is an essential quality of an Australian court of justice. There is no inherent power of the court to exclude the public. (See Scott v Scott [1913] AC 417 at 473; Dickason v Dickason (1913) 17 CLR 50 at 51; Daubney v Cooper (1829) 10 B & C 237; 109 ER 438 at 440; Russell v Russell (1976) 134 CLR 495 especially at 507 and 520-521, 532.) The taking of a verdict is something which occurs in the ordinary course of criminal proceedings. (See, for example, Coulter v The Queen (1988) 164 CLR 350 at 356, 357 and cf 359-360, 362.)

[19] It is also well established that the exceptions to the principle of open justice are few and strictly defined. (See, for example, McPherson v McPherson [1936] AC 177 at 200; R v Tate (1979) 46 FLR 386 at 402.) It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any Constitutional constraints. (See, for example, Dickason (at 51); Russell (at 520); John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 158 FLR 81 at 93 [70]-[73].)

[20] The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. (See, for example, Attorney General v Leveller Magazine Ltd [1979] AC 440 at 450.)

[21] From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, for example, Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D-E and 54G.)

[22] The principle of a fair trial has been characterised in numerous High Court judgments in the most forceful of terms. It has been described as "the central thesis of the administration of criminal justice": McKinney v The Queen (1991) 171 CLR 468 at 478; as "the central prescript of our criminal law": Jago (at 56); as a "fundamental element" or a "fundamental prescript": Dietrich v The Queen (1992) 177 CLR 292 at 299, 326; and as an "overriding requirement": Dietrich (at 330). It is not a new principle. As Isaacs J put it in 1923 with reference to "the elementary right of every accused person to a fair and impartial trial": "Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle": R v MacFarlane; Ex parte O'Flanagan & O'Kelly (1923) 32 CLR 518 at 541-542.

[23] There is no aspect of preparation for trial or of criminal procedure which is not touched by, or indeed determined by, the principle of a fair trial. As Lord Devlin once put it: "... [N]early the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their power to see that what was fair and just was done between prosecutors and accuseds": Connelly v Director of Public Prosecutions [1964] AC 1254 at 1347.

It has been said that a fair trial does not mean a perfect trial, "free from possible detriment or disadvantage of any kind or degree to the accused": Jarvie v Magistrates' Court of Victoria [1995] 1 VR 84 at 90. There is powerful authority for this proposition: Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23; R v Glennon [1992] HCA 16; (1992) 173 CLR 592; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.

A fair trial is one that is fair to the accused but also to the Crown who prosecutes on behalf of the community: McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468 per Dawson J at 488; R v Lowe (1997) 98 A Crim R 300 at 318-319.

In R v Wilkie; R v Burroughs; R v Mainprize [2005] NSWSC 794; (2005) 193 FLR 291, Howie J was concerned with the term "the interests of the administration of justice" in s 5B of the Evidence (Audio and Audio Visual Links) Act 1998. In this context he said the following about a fair trial:

[54] It has often been noted that the concept of a fair trial, which is embodied in s 5B(2), is not to be equated with a perfect trial. This was recognised in Ngo at [99]. The court quoted from Brooking J in Jarvie v Magistrates' Court (Vic) [1995] 1 VR 84 where his Honour stated that a fair trial did not mean a trial "free from possible detriment or disadvantage of any kind or degree to the accused". When considering the issue of whether an accused can have a fair trial, the court is concerned with whether the trial will be rendered unfair "when judged by reference to accepted standards of justice": Barton v The Queen (1980) 147 CLR 75 at 97. The "accepted standards of justice" take into account other interests and considerations that arise in respect of a prosecution of serious criminal offence, including the interests of the public generally, and witnesses and victims in particular.

The need to protect witnesses must be balanced against unfairness to the accused. One critical question is what is demanded by the interests of justice. Confrontation of an accused person by prosecution witnesses is a fundamental right and the Court was reminded of it in the course of submissions. However, it is not an absolute one: R v Ngo [2003] NSWCCA 82; (2003) 57 NSWLR 55 at [118] - [119]; [121].

In Ngo , the Court was concerned with an order made by the trial judge that two identification witnesses give evidence by audio-visual link and that the appellant not be permitted to see their images in court. The trial judge had been satisfied that the witnesses had fears of the appellant which were genuine and that they probably would not give evidence if required to do so in the courtroom in his presence. In construing the term "the interests of the administration of justice" in s 5B(3) of the Evidence (Audio and Audio Visual Links) Act 1998, the Court (Stein JA, Sully and Levine JJ) stated:

[124] ... The phrase, "in the interests of the administration of justice" is a broad one and not susceptible to precise definition. The particular context of the use of the phrase will provide assistance as to its content. In the subject context it must include the impact on the parties and the trial of making or not making the direction. This involves assessing the impact on the fairness of the trial for the accused. It also involves the issue of the fairness to the witnesses and to the Crown. There may be many things which can be said to be relevant to the interests in the administration of justice. Some will be interests of the accused, some of a witness, some of the Crown and some of the general community or the public interest in a fair and efficient system of criminal justice. However, what appears to be required is a balancing of these interests.

The administration of justice is a continuous process and is not confined to the determination of the particular case at hand: BUSB v R [2011] NSWCCA 39 per Spigelman CJ at [28]. In the present case, the Commissioner's concern extends beyond the trial of the present accused to future proceedings which may involve similar circumstances. The submission was to the effect that if the Court declined to make the orders sought in this case, there would be a discouragement of witnesses providing information and agreeing to give evidence in similar cases in the future. The occasions are likely to be most rare, but it cannot be assumed that they will not occur.

Orders have been made in the past that witnesses be identified by pseudonym: see, for example, R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331; Witness v Marsden & Anor [2000] NSWCA 52; (2000) 49 NSWLR 429.

BUSB provides another example of witnesses being identified by pseudonym. It involved an allegation that the applicant shot at a police officer with intent to either murder, inflict grievous bodily harm or to avoid apprehension. The defence case was an acceptance that the applicant discharged the firearm but a denial of the intent, it being claimed that he did not "shoot at" the officer. The trial judge made orders in respect of a number of officers of the Australian Security Intelligence Organisation ("ASIO"), two of whom claimed to have witnessed the shooting. The orders included that they each be given a pseudonym and that they give evidence in such a way that the accused was prevented from seeing them. BUSB sought leave to appeal but only in respect of the screening order. The asserted need for the orders was partly because of concern for the safety of the officers and their families and partly for reasons associated with the ability of ASIO to perform its functions in relation to national security.

In considering the manner in which the trial judge had exercised his discretion in making that order, Spigelman CJ said the following, which is equally applicable to the making of a pseudonym order:

[83] The overriding principle is the right to a fair trial. What degree of impingement upon that right arises from a screening order will vary from case to case.

[84] Furthermore, the prosecution, representing the community, is also entitled to a fair trial and, in that regard, can properly request steps for the protection of witnesses, including steps without which some witnesses would not be prepared to give evidence at all.

[85] Although the Acting Director's evidence in this case did not state that ASIO witnesses would be withdrawn, that evidence leads to the inference that, absent a screening order, ASIO could well be reluctant to co-operate in future cases. Understandably, prosecutors may not be prepared to enforce such testimony. As I have pointed out at [28] above, the administration of justice is a continuous process and the existence of a power must be assessed in that context, not only with respect to the facts of a particular case.

On the "right" of an accused to be able to confront his accusers, reliance was placed by Mr Stratton SC, on behalf of the accused Menzies, upon R v Davis [2008] UKHL 36; [2008] AC 1128. He referred to the following from the judgment of Lord Bingham of Cornhill:

[5] It is a long-established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence. This principle originated in ancient Rome: see generally Coy v Iowa (1988) 487 US 1012, 1015; Crawford v Washington (2004) 124 S Ct 1354, 1359; David Lusty, "Anonymous Accusers: An Historical and Comparative Analysis of Secret Witnesses in Criminal Trials" (2002) 24 Sydney Law Review 361, 363-364.

Professor Ian Dennis argues in The Right to Confront Witnesses: Meanings, Myths and Human Rights , [2010] Crim LR 255 at 257 that "the right may have been long established in the common law, as Lord Bingham maintained, but any idea that it has some unique or permanent special strength would seem to be a myth".

Mr Stratton noted that in the United States, the right of an accused to confront his accusers was regarded as sufficiently significant to be incorporated in the Sixth Amendment to the Constitution: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him". One exception to this was noted by the Court in Ngo in its reference to Maryland v Craig 497 US 836 (1900). In that case the United States Supreme Court held that evidence received by way of one-way closed circuit television was not contrary to the Sixth Amendment.

There is a discussion of the position in the United States in the article referred to by Lord Bingham, David Lusty, ' Anonymous Accusers: An Historical & Comparative Analysis of Secret Witnesses in Criminal Trials' (2002) 24 Sydney Law Review 361. It makes clear (at 375 - 385) that the Supreme Court has not definitively excluded witness anonymity in criminal prosecutions, but that there have been some strong statements suggestive of such exclusion. However, there were also some dicta in a concurring judgment in Smith v Illinois 390 US 129 (1968), per White J at 133-134, which, according to Mr Lusty, have been relied upon in many state and federal courts for the conclusion that the accused's general right to ascertain the true and complete identity of prosecution witnesses is not absolute and may be curtailed in some respects when disclosure would endanger the personal safety of a witness. It would seem, however, from Mr Lusty's article that this has, in the main, been limited to witnesses who were not "crucial".

Mr Stratton referred to Lord Bingham's quotation (at [7]) from Smith v Illinois at 131:

In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although the witness admitted that the name he had first given was false. Yet when the credibility of a witness is in issue, the very starting point in 'exposing falsehood and bringing out the truth' through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.

It is one thing to refer to statements such as these. It is also necessary to relate them to the issues of the case at hand. Mr Stratton's submissions in opposition to the Commissioner's application at no point included any specific complaint about an inhibition of the ability to cross-examine the witnesses. As I have noted elsewhere, cross-examination of the "innocent bystander witnesses" in this case is expected to be concerned directly with the matters in issue. It is not expected to be concerned with matters of credibility. Mr Stratton did not suggest otherwise and nor did counsel for any of the other accused.

Reference was also made by Mr Stratton to Lord Bingham's quotation from the judgment of Richardson J in the New Zealand Court of Appeal in R v Hughes [1986] 2 NZLR 129 at 148-149. Richardson J had referred to Smith v Illinois before observing, at 147:

Clearly the accused cannot be assured of a true and full defence to the charge unless he is supplied with sufficient information about his accuser in order to decide on investigation whether his credibility should be challenged.

Then, in the passage at 148-149 to which Mr Stratton referred:

We would be on a slippery slope as a society if on a supposed balancing of the interests of the State against those of the individual accused the Courts were by judicial rule to allow limitations on the defence in raising matters properly relevant to an issue in the trial. Today the claim is that the name of the witness need not be given: tomorrow, and by the same logic, it will be that the risk of physical identification of the witness must be eliminated in the interests of justice in the detection and prosecution of crime, either by allowing the witness to testify with anonymity, for example from behind a screen, in which case his demeanour could not be observed, or by removing the accused from the Court, or both. The right to confront an adverse witness is basic to any civilised notion of a fair trial. That must include the right for the defence to ascertain the true identity of an accuser where questions of credibility may be in issue .

I have italicised a portion of the last sentence of that passage in order to emphasis a link to the point I made above (at [35]).

A note of caution was sounded in the submissions of Mr Bromwich as to applying overseas cases in a different statutory context. Such caution is, of course, appropriate. For example, there was a very swift legislative response in Britain to Davis , with such legislation having no parallel in Australia: see the discussion in the article by Professor Dennis referenced above (at [31]). Moreover, Mr Bromwich drew attention to the facts and issues of that case. The facts emerge at the beginning of Lord Bingham's judgment (at [1] - [3]). Davis was convicted for the murder of two men by gunshot in a flat in Hackney at 9.30am on New Year's Day after an all-night New Year's Eve party. He admitted that he had been at the party but claimed he had left before the shooting and denied being the gunman. Seven witnesses at the trial claimed to be in fear for their lives if it became known they had given evidence against Davis. Three of them were the only witnesses in the case who identified Davis as the gunman. They were described in the judgment of Sir Igor Judge P in the Court of Appeal as being "very good friends of the deceased": R v Davis; R v Ellis [2006] 1 WLR 3130 at [81]. It was noted by Lord Bingham (at [3]) that Davis could not have been convicted without the evidence of the three. Their claims of being in fear were accepted as genuine.

In order to ensure the safety of the three witnesses, and to induce them to give evidence, the trial judge made a number of orders. They included that the witnesses give evidence under a pseudonym; that any identifying information be withheld from the appellant's lawyers; that the witnesses were to give evidence behind a screen so that they could be seen by the judge and jury but not the appellant; and that the natural voices were heard by the judge and jury but distorted so as to avoid recognition by the appellant.

Illustrative of the difficulties the protective measures taken in respect of the witnesses caused for Davis' defence is the following from Lord Bingham's judgment:

[32] To decide whether the protective measures operated unfairly in this case it is necessary to consider their impact on the conduct of the defence. For that purpose it cannot be assumed at the outset that the defendant is guilty and all that he says false. The appellant denied that he was the gunman. Why, then, did witnesses say that he was? His answer, on which his instructions to counsel were based, was that he believed the false evidence to have been procured by a former girlfriend with whom he had fallen out. Mr Swift duly sought to pursue this suggestion in cross-examination of the unidentified witnesses, but was gravely impeded in doing so by ignorance of and inability to explore who the witnesses were, where they lived and the nature of their contact with the appellant. When, eventually, subject to the protective measures, a female witness was called whom the appellant believed to be the girlfriend it was at least doubtful whether she was or not, but this was a question that could not be fully explored. If the jury concluded that she was probably not the former girlfriend, they would also conclude that the defence had been based on a false premise. But this was an unavoidable risk if the defence were obliged, in the words of Lord Hewart CJ in a very different context ( Coles v Odhams Press Ltd [1936] 1 KB 416), to take blind shots at a hidden target. A trial so conducted cannot be regarded as meeting ordinary standards of fairness.

His Lordship concluded (at [35]) that the protective measures hampered the defence in a manner, and to an extent, which was unlawful and rendered the trial unfair.

One of the authorities referred to in Davis was R v Murphy [1990] NI 306. Murphy concerned a trial for the murder of two British army officers in Belfast. The prosecution adduced evidence from a number of television journalists who had filmed the scene of the killing. They were not identified by name and there was a screening order so that they could not be seen by the accused or the public.

Some observations made about Davis and Murphy by Spigelman CJ and Allsop P in BUSB are useful to note. Spigelman CJ stated:

[52] In Davis the House of Lords accepted that the right [to confront accusers] was not unqualified. There were circumstances in which it could be qualified even at common law. Their Lordships did not doubt R v Murphy [1990] NI 306. (See Davis at [12], [53], [65], [73]). The contrast between Davis and Murphy is instructive. In Murphy the anonymous witnesses gave evidence about what they had filmed. The films were the relevant evidence. In Davis the testimony of the anonymous witnesses was decisive on the issue of guilt. This manifests the spectrum of significance of testimony.

Spigelman CJ, in the context of considering the facts of the case at hand, also said:

[77] The relevant issue in dispute, which Mr Lange identified, was whether the accused did "shoot at" the policemen or whether he fired off a warning shot. Only two of the ASIO witnesses could give evidence about the act of shooting. It is not clear to me why the appeal concerns the other ASIO witnesses, about whom no specific submissions were advanced.

[78] Mr Lange emphasised that the accused was aware that he was under surveillance and, therefore, may be able to assist the cross-examiner by recalling where and when he had seen a witness. For example, he submitted that the accused could give instructions that a witness was not in the location where he asserted s/he was.

[79] There were, it appears, four eyewitnesses: two police officers and two ASIO officers. Mr Lange submitted that the ability to cross-examine two of them was impeded by the inability of the accused to see their faces.

[80] There are, I have no doubt, circumstances in which the degree of impingement upon effective cross-examination is of a high order. However, what is suggested here does not appear to me to be such.

[81] The only identified effect of the accused seeing the faces of the two ASIO eyewitnesses was the possibility that the accused's memory may be triggered about their ability to observe what they say they observed. I am not satisfied that the degree of impingement of effective cross-examination in the present case is of significance.

[82] I have referred above to the facts in Murphy and Davis. All but two of the ASIO witnesses in the present case are at the Murphy end of the spectrum. Two ASIO eyewitnesses can give significant evidence of the shooting, but it is corroborative rather than critical evidence. They are not at the Davis end of the spectrum.

Spigelman CJ held that the trial judge's conclusion that the applicant was not disadvantaged by being unable to see the faces of the witnesses was one that was open to him. Hodgson JA, McClellan CJ at CL and Johnson J published short notes of concurrence with the Chief Justice. Allsop P also agreed but observed as to Davis :

[93] ... Whilst their Lordships accepted Murphy as an exception to the general rule that an accused is entitled to be confronted by and know his or her accusers, there was no endorsement of any principle of wider application that would permit a compromise of the fairness of the trial: see Lord Bingham of Cornhill at [12] and [27]-[32], Lord Rodger at [44], Lord Carswell of Eaton-under-Haywood at [53] and [59]-[60], Lord Brown at [64]- [65] and Lord Mance at [73]-[74] and [97]-[98]. Davis also raises questions as to the scope of the judicial power to make orders (without statutory foundation) that have the effect of reducing the fairness of the trial. Murphy can be easily seen as a case in which there was not a scintilla of unfairness or injustice, notwithstanding the importance of the connecting evidence of the cameramen. The lack of error demonstrated in the conclusion of the primary judge as to disadvantage makes it unnecessary to explore these questions in the context of balancing the demands of national security.

Mr Bromwich's submission was, in effect, that Davis was a case very far removed from the present. It was a case involving protective orders made in respect of witnesses known to the accused, and in respect of whom credibility was very much an issue. Knowledge of the identity of the witnesses was, in those circumstances, at least potentially, central to effective cross-examination. It was submitted that the contrast was that cross-examination as to credibility was not, it would appear, an issue in the present case which was more at the Murphy than the Davis end of the spectrum that was discussed in BUSB . With no known knowledge or association between any of the witnesses and the accused, cross-examination will be concerned with issues of reliability. The identity of the witnesses, so it was submitted, will have no bearing upon this.

Hughes was also distinguishable in Mr Bromwich's submissions. The issue was whether the trial judge was correct in requiring disclosure of the identity of an undercover police officer to whom it was alleged the accused had supplied drugs. The Solicitor-General sought that the New Zealand Court of Appeal should endorse a blanket rule that the identity of undercover police officers should not be revealed unless disclosure would help to show the defendant was innocent. This was, in effect, the rule that applied in the case of the identity of non-witness informers, although that rule has been expressed in terms of "could" rather than "would": see, for example, D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218 per Lord Diplock. Richardson, Somers and Casey JJ held that the trial judge was correct in requiring that the officer reveal his name. The common theme in their separate judgments was that revelation of the officer's name was necessary in any case in which credibility may be in issue (Richardson J at 147; Somers J at 155; Casey J at 158).

Cooke P and McMullin J were of the view that revelation of the officer's name need not be required if the trial judge is satisfied that there is really no substantial dispute as to the officer's evidence (145; 153). It may be necessary to receive evidence on the subject in order for the judge to be satisfied that there is such a dispute (145; 153). This, Mr Bromwich submitted, was a consideration that more closely corresponded with the balancing exercise that I am required to carry out pursuant to s 130 of the Evidence Act . There is also some support for this approach in the judgment of one of the majority judges. Casey J stated (at 158):

There may be cases in which such an inquiry [as to the witness' background] is seen to be irrelevant, in which event the Judge would be entitled to rule out the question, if necessary resolving any dispute under the normal voir dire procedure. This may happen if, for example, the accused made an unchallenged admission of the essential facts to be proved by the witness; or if the only reason for seeking his or her identity has nothing to do with credibility or the issues in the trial.

Mr Stratton sought to characterise the Commissioner's application in the present case as being "no less sweeping" than that in Hughes . There is some validity in the contention that the application is "sweeping", and I will return to that, but the Commissioner is not seeking to establish a blanket rule as the Solicitor-General was in that case.

The evidence

The evidence upon which the Commissioner relied comprised open and confidential affidavits by the Deputy Commissioner (Specialist Operations) of the New South Wales Police Force, Mr Naguib Kaldas; a confidential affidavit by Detective Sergeant Peter Walke of the Middle Eastern Organised Crime Squad and formerly of the Gangs Squad; an affidavit by Ms Anthea Tomlin, Assistant Crown Solicitor; an affidavit by Ms Katherine Nightingale of the Office of the Director of Public Prosecutions; a statement by Detective Sergeant Wayne Walpole of the Gangs Squad; and a selection of statements by seven witnesses who have to date been referred to by the numbers 3, 5, 12, 21, 24, 42 and 300. There was no objection to my receiving any of this material, subject to an application that was made for Mr Kaldas to attend for cross-examination. No evidence was tendered on behalf of any of the accused.

The following emerges from the open affidavit of Mr Kaldas.

The Comanchero and Hells Angels motor cycle clubs are regarded by the police as outlaw motorcycle gangs. There have been numerous incidents that have taken place where the police have investigated acts of violence and intimidation, including the use of weapons, which have involved members of these clubs. It is Mr Kaldas' experience, which is considerable, that potential witnesses to such incidents have been fearful and reluctant to come forward or to make statements. Mr Kaldas is aware of witnesses being approached and threatened with a view to preventing them speaking to police or giving evidence in court. Witnesses have abruptly withdrawn their co-operation or failed to appear at court.

Mr Kaldas claims to have observed that there is a perception amongst the general public that outlaw motorcycle gang members are intimidating and are to be feared. Such gangs have a hierarchical structure that allows their members, particularly senior members, even when incarcerated, to direct other members to carry out tasks.

It was in view of the foregoing that the investigators in the present matter decided to edit out names and other identifying information from the statements made by civilian witnesses. There were in excess of 300 such statements and the process was imperfectly executed. Some identifying information remained in some of the statements that were served upon the accused's representatives.

It was initially intended that the true identities of the witnesses would be revealed when a time was reached when steps could be taken to minimise the risk of witnesses being approached and intimidated. However, police ultimately came to the view that nothing short of maintaining the pseudonyms would satisfy their concerns in this respect. It was thought that any adverse incident involving any of the witnesses would likely create problems with at least a proportion of the rest, the extent to which this would occur being related to the nature of the event. Mr Kaldas claims that at worst, the result could be that most, if not all, of the civilian witnesses would refuse to give evidence.

Police adopted a policy of avoiding the elevation of any existing fears of witnesses or the creation of any new fears. They kept a record of what was volunteered on the topic with minimal or no additional questions being asked to explore the nature and extent of fears expressed. When contacting witnesses in relation to their attendance at court they have not said anything about any security concerns held by the police unless the matter was raised by the witness. If anything was said by a witness, the police response was to tell the witness that adequate security would be arranged. This is said to have been to ensure that the police views on the subject did not influence the individual concerns of witnesses.

Despite this approach being taken, a number of witnesses have refused to give evidence, or have expressed reluctance or concern about doing so.

To the knowledge of the police, none of the witnesses knew the accused prior to the incident at the airport. The witnesses are simply people who just happened to be either on board the flight from Melbourne or present in and around the terminal at the relevant time.

Police fear that if the names of the civilian witnesses are disclosed to the accused the witnesses may be reluctant to give evidence, or may actually refuse to give evidence. This is particularly so if the witnesses, or family members of witnesses, are the subject of intimidation or threats. A further concern is that even if witnesses give evidence, they may do so in a way that is less than full and frank. According to Mr Kaldas, police are concerned to protect witnesses who have come forward and agreed, even if reluctantly, to give evidence. This is because of the difficulties experienced in the past in obtaining evidence in such matters.

There is a fear that if the names of witnesses are revealed, there is a potential for their addresses to be found. That fear is based upon the experience of three occasions since January 2009 in which serving police officers and non-sworn employees of the New South Wales Police Force have been found to have supplied confidential police information to Comanchero members. Mr Kaldas refers additionally to information provided to police by SP to the effect that Comanchero members were in possession of what appeared to be confidential police data concerning members of the Hells Angels, including the deceased's brother. Such information included photographs, home addresses, associates, locations frequented, criminal histories, and sundry intelligence. SP claimed that Comanchero members were shown these documents about two weeks before the airport incident and were tasked with carrying out surveillance upon the Hells Angels members.

Another cause for concern about addresses being identified if witness names are made known is that police have intelligence from what is described as "confidential sources" to the effect that the Comanchero organisation has access to databases such as those maintained by the Roads and Traffic Authority, the Land Titles Office, the Australian Taxation Office, Medicare, telecommunications providers and internet service providers. There is the electoral roll as well.

Mr Kaldas' concern is not confined to the perceived risk of harm to, or intimidation of, witnesses in the present matter. He is also concerned about the effect upon witnesses in future matters involving outlaw motorcycle groups. He states that if it became generally known that witnesses in such matters are not offered the protection of anonymity through the use of pseudonyms, and especially if harm came to any of the witnesses in the present matter and that became widely known, then future potential witnesses are likely to be even more reluctant to come forward and assist police with their inquiries and ultimately to give evidence.

Whilst it was sought to cross-examine Mr Kaldas, that cross-examination was not directed to any dispute about any of these matters.

The confidential affidavits of Mr Kaldas and Detective Sergeant Walke provide explicit information as to concerns expressed by witnesses about giving evidence and further information about the concern about access to data concerning witnesses' personal information.

Annexed to the affidavit by Ms Nightingale were pages 1268 to 1273 of the committal transcript, which record an incident which occurred when witness 5 was giving evidence. She was in the process of giving evidence on the voir dire about her having read some newspaper articles concerning the incident at the airport. She was giving evidence by audio-visual link from Queensland. Apparently the witness was under the impression that the State in which she lived had not been disclosed. It had been, but not her name and address. When the prosecutor asked her a question about whether she had seen articles in "local Queensland newspapers" she became distressed. Something then occurred while there was some discussion going on between the magistrate and the prosecutor which prompted the prosecutor to complain that "someone from the dock just mocked this witness by crying". Then, during a further exchange between the prosecutor and the magistrate the witness got up and left. A court officer who was present with the witness told the magistrate that "she went out quite upset because she believes something that was said has given where she lives away". The officer also reported that she had left "in tears". A short time later the witness returned, was given an explanation by the magistrate that appeared to allay her concerns, and was released for the day.

The selection of statements make plain that what was seen by the witnesses in the departure hall was violent in the extreme. The statements include expressions to the effect that the witnesses were shocked, horrified, terrified, sickened and scared. Some of the witnesses appear to have had an unfortunately good view of the deceased being clubbed to death. Quotations from two of the statements are sufficient to provide the flavour:

Witness 300 saw two men " bludgeoning the steel bollards into the upper body of " the deceased. The witness said, " During the incident I was scared and sickened as to what had happened. These people looked like animals going at it ".

Witness 24 is a 75 year old gentleman who also saw the fatal attack upon the deceased. Of the entire incident he said, " I was shocked that something so violent was happening in front of us in the middle of the day. It was clear that these guys had no regard for anyone else and they didn't attempt to cover their faces or seem to worry about being caught ".

Application to cross-examine Deputy Commissioner Kaldas

Counsel for the accused Hawi and the accused Menzies sought to cross-examine Deputy Commissioner Kaldas. I refused to permit that. My reasons for doing so may be briefly stated.

There is no right to cross-examine such a deponent upon his affidavit. Leave to permit such cross-examination is granted only very rarely: Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681 per Hunt CJ at CL. As the Chief Judge there observed, a judge may instead request the party claiming immunity to produce further evidence which overcomes any defect in the claim which may be apparent on the face of the evidence already produced.

Sheppard J explained in Young v Quin & Ors (1985) 4 FCR 483 at 489 that cross-examination is only allowed in exceptional circumstances, principally because it will be impossible for any cross-examination to take place without the matters in respect of which the claim is made becoming the subject of it and thus being revealed.

Those authorities are pre- Evidence Act cases. The rationale explained by Sheppard J remains relevant but the provision of s 130(3) that "the court may inform itself in any way it thinks fit" is of additional significance. It allows for a degree of flexibility in the manner in which a court may proceed upon such an application. For present purposes, I take it to confirm the common law that there is no "right" to cross-examination.

There was correspondence between the representatives of Messrs Hawi and Menzies and the Crown Solicitor's office on this subject. It is annexed to Ms Tomlin's affidavit. Mr Stratton was invited to indicate why cross-examination was sought, Ms Tomlin suggesting that any concerns with Mr Kaldas' evidence might be addressed in other ways. She provided a response in the same terms to Mr Hawi's solicitors.

Mr Stratton replied that he sought to cross-examine Mr Kaldas as to (1) the sources of his information; (2) the number of witnesses who have expressed fears; (3) the basis for such expressed fears; (4) whether any witnesses have indicated that they will not give evidence without a pseudonym order and if so how many; and (5) details of any cases in which any of the accused have threatened witnesses. In oral submissions, Mr Stratton focussed upon the absence, or inadequacy, of evidence, of which he was aware, on these topics.

The reply by Mr Hawi's solicitors maintained that cross-examination should be permitted but did not reveal what further information was sought to be obtained. Mr Dunn QC made oral submissions in which he set out three topics for cross-examination. The first was whether any witnesses had been approached by anyone. The second was, if the answer to the first was affirmative, by whom was the approach made. The third was to quantify what "some" meant, a reference to Mr Bromwich's written submission at [30] where the assertion was made that "a clear risk that some witnesses may decide not to give any further evidence if their identities are not protected from disclosure".

Mr Bromwich informed me following the submissions of Mr Dunn that his understanding was that no inappropriate approach had been made to any prosecution witness, and so there was no need for cross-examination on that topic. Mr Bromwich pointed out, however, that except in the case of inadvertent slips, the identities of the witnesses had thus far been concealed. Mr Dunn then withdrew his application to cross-examine, but supported that of Mr Stratton insofar as it sought to quantify the number of witnesses who may decide not to give evidence.

Mr Gordon made a short submission on behalf of his client, Mr Kisacanin, and also on behalf of Mr Driels' client, Mr Potrus (Mr Driels not being in attendance), in which he supported the application to cross-examine.

I accept the submissions of Mr Bromwich that the topics of cross-examination sought by Mr Stratton are really "submission points". In other words, if there are deficiencies in the evidence, then that is a matter that will tell against making the orders sought. None of the topics proposed are appropriate. Cross-examination will not have any bearing on the information that is available to the court. The evidence is what it is. I acknowledge that with further information, counsel may be in a position to make more effective submissions as to whether the orders sought by the Commissioner should be made. However, in the circumstances of this case, I believe that I am in a position to consider the issues, in the light of both the evidence available to counsel and that which is not, without submissions that are based upon the more precise information that Mr Stratton seeks in the five topics of cross-examination that he has proposed.

Submissions

Those counsel who made submissions on behalf of their clients joined in a characterisation of the Commissioner's application as novel and unprecedented. No-one suggested there has previously been an application for pseudonym orders for such a large number of witnesses, let alone all civilian witnesses in the prosecution case. This certainly serves to illustrate the care with which the application must be approached.

Mr Bromwich submitted that no single witness' evidence is crucial to the prosecution. Most are, to one degree or another, corroborative of at least some of the others. No-one suggested otherwise. Indeed, Mr Gordon conceded on behalf of the accused Kisacanin that there was no dispute at all with any of the civilian testimony.

It was put that if there was any prejudice or unfairness, in a forensic sense, for any of the accused, it was slight and probably speculative. Aside from a submission made by Mr Dunn on behalf of the accused Hawi (to which I shall return), no-one took issue with this submission either. The prejudice that was the principal focus of the submissions was the effect the making of pseudonym orders would have upon jurors' perception of the accused.

The main concern on behalf of the accused if pseudonym orders were made is that the jury would conclude that the basis for such orders is that the witnesses are in fear of the accused; that there are good reasons for them to be fearful; and that the Court accepted that this was the case.

Mr Bromwich acknowledged the principles of open justice and of a fair trial, but submitted that it was also necessary for the court to take into account the public interest in securing convictions, where appropriate, for serious offences. This interest, he submitted, would be compromised if witnesses refused to give evidence out of fear of repercussions for themselves, or their families, or both. It was also submitted that the court should take into account the interests of the witnesses themselves: see Ngo at [124].

It was submitted by Mr Stratton that his client had a right to be confronted by his accusers with knowledge of who they are. He referred to this as the "default position" that applied absent special circumstances which must be established by the prosecution. I have earlier referred to the discussion in the authorities of this aspect and have noted that this "right" is not unqualified. Mr Bromwich observed that the witnesses will be giving evidence in open court, in the presence of the accused. There does not appear to be any issue as to credibility (and none was asserted). The police have, and are, investigating any criminal histories of the witnesses. It has been ascertained thus far that in respect of 146 of the witnesses, 2 have a drink driving conviction and 1 has a Children's Court matter which was more than 25 years ago.

Mr Bromwich submitted that there is a "clear risk that some witnesses may decide not to give any further evidence if their identities are not protected from disclosure". Counsel for the accused were hamstrung in responding to this submission without knowledge of the contents of the confidential affidavits. Mr Dunn made much of the use of the word "some" but that simply served to highlight the difficulty under which counsel were labouring.

A concession was made on behalf of the Commissioner that, despite some inadvertent disclosure of identifying information in some of the witness statements that had been served, there was no suggestion that any of the witnesses had been inappropriately approached in the period which is now in excess of two years since the incident at the airport. In countering submissions that were made that this demonstrated that there was no cause for the Court making the orders sought, Mr Bromwich pointed out that aside from the inadvertent disclosures, the identity of the vast majority of the witnesses had been withheld. He maintained that there was a "real risk" of harm to witnesses in the event that their identities became known to the accused or their associates.

Mr Stratton submitted that a pseudonym order would only be justified in the case of a witness who has expressed fears for his or her safety and upon the Court accepting that such fears are objectively real and genuinely held. A blanket order made in respect of all witnesses, whether they have expressed fears or not, and whether objectively real and genuinely held, was not justifiable and was contrary to authority.

As to the need for "proof of reasonable fears on the part of the witnesses", Mr Stratton relied upon the following from the judgment of Heydon JA (as he then was) in Witness v Marsden & Anor :

[144] It is necessary that there be a minimalist interference with open justice to the extent of pseudonym orders in favour of the Witness. That is because without them the Witness reasonably fears death or physical injury, or alternatively an unnecessary loss of liberty. These are evils which it is necessary to avoid by that degree of minimalist interference. Without the orders, the Witness is exposed to hurt, and the party calling him is faced with the risk of testimony proceeding from a person who is reluctant, but in a particular sense. Many witnesses, as the plaintiff pointed out, are reluctant, but few are reluctant because of fears for their lives, safety or liberty.

I accept the submission of Mr Bromwich that this was not asserted by Heydon JA to be a statement of general principle that a pseudonym order could only be made upon such proof, and I am not sure that Mr Stratton suggested otherwise. The passage does, however, serve to highlight that if the fear of a witness is put forward as the basis of such an application, a court would ordinarily need to be satisfied that such fear is genuinely held on reasonable grounds, as opposed to something that is perhaps fanciful or idiosyncratic to the witness.

There was a degree of dispute between counsel for the Commissioner, on the one hand, and counsel for the accused Menzies on the other, as to whether the authorities require a different approach depending upon whether the person whose identity is sought to be concealed is an informer or a witness. I do not regard the resolution of this as necessary for the determination of the application. In my view, the balancing exercise I am required to engage in does not necessarily depend upon characterisation of a person as falling into one category or another. More significant is the actual evidence before the Court, the facts found upon such evidence, and the balancing of the competing interests which fall to be considered.

Mr Stratton also addressed the evidence that violence and intimidation have been used by "outlaw motorcycle gangs" in other cases in the past. He characterised this as being not dissimilar to an argument that "because some criminals (as a class) might from time to time seek to interfere with prosecution witnesses, all prosecution witnesses should receive a pseudonym order". However, the application by the Commissioner is not put on anywhere near such a broad basis as that characterisation suggests. It is put on quite a closely defined basis in the unusual circumstances of an unusual case.

It was submitted that making pseudonym orders would not have any impact upon the activities of corrupt police referred to in the evidence for the Commissioner. That matter is put forward by the Commissioner as a cause of concern in that if names of witnesses are disclosed, there appears to be a means of further identifying information including addresses being made available to the accused or their associates. Making pseudonym orders, in my view, would serve to minimise this aspect of risk. The concealment of names would serve to frustrate anyone minded to make inquiries of government and other databases that contain personal information.

Mr Stratton also referred to the fact that a number of witnesses reside overseas. The Crown Prosecutor indicated that there are some 20 witnesses in this category. Mr Stratton pointed out that fears held by any of these witnesses could not be regarded as reasonable. Mr Bromwich did not make any specific submission in response.

Mr Dunn stridently opposed the making of orders in respect of all witnesses. Primarily his opposition was out of concern for the prejudicial effect that this would have upon the jury's perception of the accused. It would amount, in his submission, to the jury thinking that the Court had sanctioned a concern that the witnesses have good reason to be in fear of the accused.

Mr Dunn's "fall-back position" was that some of the witnesses might be allowed to use another name, but not all of the witnesses. He suggested that the better course was to deal with any issues raised by individual witnesses on a witness-by-witness basis.

The point was also made in Mr Dunn's submissions that the evidence of the witnesses was, in effect, locked in. If there was any departure or shortfall in the evidence, for any reason, the Crown could seek leave to cross-examine the witnesses under s 38 of the Evidence Act . Also, there was some prospect of the Crown reading witness statements and committal evidence in the case of any witnesses who are too timid or nervous about giving oral testimony. That, of course, would very much depend upon the consent of the accused being forthcoming. Implicit in these submissions was the point that there is no, or very little, incentive for anyone to interfere with witnesses. That is also implicit in Mr Bromwich's submission that none of the witnesses are crucial to the prosecution.

Another aspect of prejudice referred to by Mr Dunn, but not by counsel for any of the other accused, was that cross-examination of the witnesses would be inhibited. He referred to witnesses' occupations having been redacted from their statements. He suggested as an example that if a witness who purported to identify an accused happened to be a journalist, the defence might wish to explore with the witness whether he or she had accessed file photographs or film of the accused prior to making the identification. Media cameras were, apparently, present at the arrest of Mr Hawi.

It was later clarified that the redaction of occupations had only occurred in the case of witnesses where knowledge of their occupation could lead to their identification - for example, a witness who was employed in a shop in the vicinity of events at the airport. The Crown Prosecutor indicated that the occupations of some witnesses had in fact been disclosed where it was relevant - for example, a doctor and some nurses who tended to the deceased. Generally, however, the occupation of a witness is not relevant and would not be expected to be included in his or her statement. In relation to witnesses who made observations from their workplace, the relevant fact is the location from which the observations were made; how good a vantage point the witness had; and the like. The Crown Prosecutor indicated that such information would not be withheld.

Mr Dunn submitted that providing witnesses with pseudonyms would serve to unsettle them. I rather think it would do the contrary. However, he also made the point that it had the potential to indicate to witnesses that the Court accepted that there was reason for them to be fearful of the accused. This may, perhaps, have a conscious, or subconscious, influence upon the evidence that is given, either more or less favourably for the Crown.

Mr Trevallion, on behalf of the accused Abounader, adopted the submissions of both Mr Stratton and Mr Dunn. He too expressed as the primary concern the prejudicial effect that pseudonym orders for all witnesses would have in the jury's perception of the accused. He specifically noted the inadvertent disclosure of identifying information in some of the witness statements. In an annexure to his written submissions, he listed 15 of the 58 witnesses who had given evidence at the committal hearing who fell into this category.

Mr Gordon made submissions on behalf of his client, Mr Kisacanin, and, in the absence of Mr Driels, on behalf of Mr Potrus. He submitted that because Mr Kisacanin was a nominee, rather than a full, member of the Comanchero he would suffer greater prejudice from the making of pseudonym orders than any other accused. Why that would be so is unclear. Apart from that, Mr Gordon did not suggest there would be any specific forensic prejudice but he asserted the general prejudicial effect the making of orders would have with the jury.

Practical issues

The Crown Prosecutor favoured the making of the orders sought by the Commissioner. She submitted that the better course would be to tell the jury at the commencement of the trial that witnesses would not be divulging their real name. She proposed that a direction could be given to avoid any prejudicial impact with the jury. Mr Stratton supported this approach. Mr Bromwich reminded me of appellate authority to the effect that juries are generally quite capable of adhering to judicial directions, and he suggested that there were cases in which juries had been directed to put aside any consideration of matters far more prejudicial than what is proposed in this case.

If the jury is not told that witnesses have been permitted to use some alternative name, there is a very grave risk that there will be a slip, given the number of witnesses involved and the length of the trial. This is particularly so in the cases of witnesses where a number of family members are giving evidence and they need to make reference to each other. What could be said to the jury in the event of such a slip is difficult to contemplate. Then there is the problem of what is to be said about a witness' name at the beginning of the witness' evidence. For these reasons I believe the Crown Prosecutor's suggestion is a practical and sensible way to proceed, if any pseudonym order is made.

I acknowledge the concern of counsel for the accused about the jury's perception of the accused if told that the Court has permitted such a large number of witnesses to give evidence other than under their real names. However, one has to be realistic in relation to this perceived risk of prejudice. There will be evidence before the jury that the accused were members of motorcycle clubs that have notoriety in the community. There will be no suggestion that any of the accused were not involved with one or the other club. There will be no suggestion, as I perceive it, that any of the accused were not present at the airport. It will be conceded in respect of some of the accused at least that they were involved in the fighting that took place either at Gate 5 or in the departure hall, or both. The descriptions that will be given by witnesses of this fighting will be to the effect that it was extremely brutal and violent.

Given this will be the general flavour of the trial, it is going to be necessary to give the jury very strong directions about the need not to let any preconceived ideas of prejudice, emotion and the like to intrude upon an objective assessment of the evidence. It will be necessary to direct the jury that their focus must be upon the evidence that either establishes the existence of any joint criminal enterprise or raises a doubt about it. The jury will also need to be directed to focus upon the evidence as to the scope of any such joint criminal enterprise, the involvement of each of the individual accused in it, and what precisely such an accused may have contemplated was its nature and scope. I am satisfied that the jury will be quite capable of focusing upon whether the evidence either inculpates or exculpates each of the individual accused.

The jury are highly likely to appreciate that witnesses to such violent events would not only be frightened by the experience but have some trepidation about giving evidence about it. Knowing that the witnesses are not revealing their real names when they give evidence may well be thought unsurprising. Having regard to these matters, it seems to me that it will be possible to give directions to the jury that will substantially reduce and perhaps avoid any prejudicial impact that the making of a pseudonym order is perceived by counsel for the accused to have for their clients.

Section 38(7) of the Jury Act 1977 requires that the Crown Prosecutor inform the jurors on the panel, inter alia, of the identity of the principal witnesses to be called by the prosecution. This is an important step in ascertaining whether any of the witnesses are known to the jury panel members. If they are, it permits an inquiry to be made as to whether such knowledge will affect the person's ability to give impartial consideration to the case. The prosecutor usually carries out this function by informing the panel members of the names of the witnesses. But that is not the only means by which a witness' identity can be made known. In Dodds v The Queen [2009] NSWCCA 78; 194 A Crim R 408, undercover police officers whose names were suppressed stood before the jury panel to permit the panel members an opportunity to determine whether they were known to them. In the present case it is proposed to display photographs of the witnesses rather than providing a written or oral list of names. That may be adequate but it would also be preferable to tell the jury to inform me if they recognise any witness when called to give evidence.

While these matters of practical difficulty present a challenge, they are not insurmountable problems.

Determination

I proceed upon an acceptance of Mr Bromwich's characterisation of the evidence that none of the witnesses are "crucial". No counsel for any of the accused took issue with it. However, it is one thing to say that no individual witness is crucial. In this case, the pseudonym order is sought in respect of the entirety of the civilian witnesses. As I perceive it, that body of evidence is crucial. It would seem safe to say that without it, the prosecution would not have a case. In considering the "spectrum of significance of testimony" ( BUSB at [52]), this body of evidence is very much at the Davis end rather than the Murphy end. If the evidence of individual witnesses was to be examined, undoubtedly different and varying conclusions would be drawn.

I am not satisfied that there would be any specific and known forensic disadvantage to any of the accused in the event that a pseudonym order is made in the terms proposed by the Commissioner. There remains, however, the possibility of there being some disadvantage which it is not possible for counsel to identify. While this is somewhat speculative, such a possibility, whilst seemingly minimal, cannot be completely dismissed.

As counsel for the accused submitted, the application certainly is novel. Making the orders sought would represent a significant departure from open justice principles. Departures in the past have been made in the case of one, or a few, witnesses; never anything like the 149 or so that are proposed in this case. The extent of the departure that is proposed in this case is a matter I view with considerable concern. As Hunt J observed in Savvas (at 337) , it is no light matter for any court to make an order suppressing the identity of witnesses. It is even less a "light matter" when the number of witnesses whose identity is sought to be suppressed is as extensive as here.

It has been my experience that it is not uncommon for witnesses to be concerned about having to give evidence, particularly in cases involving serious crime with accused persons who are perceived to be a danger. This poses a particular challenge for police investigators but it is often the case that a professional and resourceful officer is able to reassure such witnesses sufficiently to secure their testimony. I accept that the police in this case have adopted a very cautious approach in discussing with witnesses any concerns that they have. However, there is a paucity of evidence concerning attempts which have been made to encourage reluctant witnesses to testify.

A number of witnesses have expressed fears, or concerns, about the possibilities of repercussions if their identities were revealed. The extent to which this has occurred is set out in the confidential affidavits. It is not suggested that each and every one of the witnesses have done so. I appreciate, however, that the application is not based solely upon concerns raised by witnesses. There is the general overriding concern held by the police, not only in relation to witnesses in this case but also for the prospects of witnesses coming forward with information and agreeing to give evidence in similar cases in the future. I am very mindful of the consideration that a climate of fear should not be allowed to defeat the interests of the community in seeing that justice is served in cases involving allegations of serious criminal conduct.

In the end, however, it is my view that it has not been demonstrated that there is a need to make an order that extends to each and every civilian witness. I am not satisfied, for example, that a sufficient case has been made to justify a pseudonym order extending to witnesses who reside overseas. The expectation is that those witnesses would fly in shortly before they are due to give evidence; be accommodated somewhere that need not be disclosed; and then fly out shortly after they have given their evidence. There is no evidence that the accused have connections which would give rise to concern about any approach being made to somebody who lives in another country.

I am not persuaded that a sufficient case has been made to justify an order extending to witnesses who have expressed no concern at all. In saying that, I acknowledge the force of the submission that the explanation for witnesses not having expressed a concern may be that when they were called to give evidence at the committal they were told that they would have a pseudonym. Witnesses who did not give evidence at the committal may well not have given any thought to whether they have any concerns, but such thoughts might crystallise in the coming weeks as arrangements are made for their attendance at the trial. The confidential affidavits are relevant to this issue.

In respect of witnesses who have expressed a concern, the evidence presently available is insufficient to establish that the making of a pseudonym order is necessary to secure the due administration of justice. What appears in the confidential affidavits in relation to individual witnesses is, in the main, brief and in general terms. In many cases it is confined to the quotation of one or two sentences uttered by a witness. There is considerable variation in the level of concern expressed. What the material certainly does establish is that there is a consistent theme in what the witnesses have said. However, that is not sufficient to justify making an order that extends to every witness, regardless of whether they have said anything or not, and, if something has been said, regardless of precisely what it was.

I accept the submission of Mr Dunn that if any pseudonym order is to be considered, it should be done on a witness-by-witness basis. There would need to be a far more detailed explanation of the need for an order in relation to particular witnesses than that which has been provided to date.

In conclusion, the public interest in the accused having a fair trial in accordance with open justice principles is not outweighed by the public interest in preserving the anonymity of all of the "innocent bystander witnesses". The evidence in support of the latter is insufficient to tip the scales in its favour.

The application is refused.

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Decision last updated: 08 February 2012

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Citations

R v Hawi (No 2) [2011] NSWSC 1648

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Medium Neutral Citation:	R v Hawi & ors (No 2) [2011] NSWSC 1648
Hearing dates:	21 April 2011
Decision date:	29 April 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Application refused
Catchwords:	CRIMINAL LAW - procedure - witnesses - open justice and fair trial principles - "right" to confront accusers - witnesses in fear - public interest immunity and s 130 Evidence Act - anonymous witnesses - inadequate evidence to justify making pseudonym order
Legislation Cited:	Evidence Act 1995 Evidence (Audio and Audio Visual Links) Act 1998 Jury Act 1977
Cases Cited:	Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 BUSB v R [2011] NSWCCA 39 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 Dodds v The Queen [2009] NSWCCA 78; (2009) 194 A Crim R 408 Eastman v The Queen (1997) 76 FCR 9 Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 Jarvie v Magistrates' Court of Victoria [1995] 1 VR 84 John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344 Maryland v Craig 497 US 836 (1900) McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468 R v Davis [2008] UKHL 36; [2008] AC 1128 R v Davis; R v Ellis [2006] 1 WLR 3130 R v Glennon [1992] HCA 16; (1992) 173 CLR 592 R v Hughes [1986] 2 NZLR 129 R v Lowe (1997) 98 A Crim R 300 R v Murphy [1990] NI 306 R v Ngo [2003] NSWCCA 82; (2003) 57 NSWLR 55 R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331 R v Wilkie; R v Burroughs; R v Mainprize [2005] NSWSC 794; (2005) 193 FLR 291 Smith v Illinois 390 US 129 (1968) Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 Witness v Marsden & Anor [2000] NSWCA 52; (2000) 49 NSWLR 429 Young v Quin & Ors (1985) 4 FCR 483
Texts Cited:	David Lusty, 'Anonymous Accusers: An Historical & Comparative Analysis of Secret Witnesses in Criminal Trials' (2002) 24 Sydney Law Review 361 Ian Dennis, 'The Right to Confront Witnesses: Meanings, Myths and Human Rights' [2010] Crim LR 255 at 257
Category:	Procedural and other rulings
Parties:	Commissioner of Police Regina Mahmoud Hawi Christian Adam Menzies Farres Abounader Canan (aka Ishmail) Eken Usama Potrus Zoran Kisacanin Tiago Costa Maher Aouli David Padovan
Representation:	Counsel: Mr R Bromwich SC with Mr R Bhalla (Commissioner of Police) Ms N Adams with Ms H Roberts (Crown) Mr P Dunn QC (Hawi) Mr J Stratton SC (Menzies) Mr J Trevallion (Abounader) Mr P Young SC (Eken) Mr J Gordon (Potrus & Kisacanin) Mr K Kyriacou, Solicitor (Costa & Aouli) Mr A Conwell (Padovan) Solicitors: Crown Solicitor (Commissioner of Police) Solicitor for Public Prosecutions (Crown) Sid Hawach & Co (Hawi) Hunter Flood Pty Limited (Menzies) Archbold Legal (Abounader) Purcell Felton Lawyers (Eken) Barakat Lawyers (Potrus) Elie Rahme & Associates (Kisacanin) Kiki Kyriacou Lawyers (Costa & Aouli) Nyman Gibson Stewart (Padovan)
File Number(s):	2009/50087