R v Jaghbir (No 1) - [2020] NSWSC 762

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Jaghbir (No 1) [2020] NSWSC 762
Hearing dates: 16 March 2020 & 9 June 2020
Date of orders: 12 June 2020
Decision date: 18 June 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
1.   Subject to orders (3) and (5) to (9) below, certain evidence given on 12 July 2017 and 18 October 2017 to the New South Wales Crime Commission by the witness referred to as Witness 1 is to be made available to:

(a)   The Crown prosecutors and solicitors acting for the Crown in these proceedings; and

(b)   Mr G James QC, Mr E James and the solicitors instructing them for the accused Ahmed Jaghbir in these proceedings.

2.   The New South Wales Crime Commission is to produce to the Court the following documents on or before 15 June 2020:

(a)   Those portions of the transcripts of Witness 1’s evidence identified in an email from the Associate to Davies J of 10 June 2020 to Danka Mrdjenovic at the New South Wales Crime Commission and in the email from the Associate to Davies J to Georgiana Guirguis at the New South Wales Crime Commission of 11 June 2020 both of which emails are annexed hereto, in which those portions of the evidence are highlighted; and

(b)   A document reproducing those parts of the transcripts of Witness 1’s evidence that are highlighted (“the Witness 1 redacted transcript”).

3.   Subject to orders (4) to (9) below, certain evidence given on 24 May 2018 to the New South Wales Crime Commission by the witness referred to as Witness 2 is to be made available to:

(a)   The Crown prosecutors and solicitors acting for the Crown in these proceedings;

(b)   Mr G James QC, Mr E James and the solicitors instructing them for the accused Ahmed Jaghbir in these proceedings; and

(c)   Mr Peter Lange of counsel and Mr Nick Hanna, the legal representatives for Witness 2.

4.   The New South Wales Crime Commission is to produce to the Court on or before 15 June 2020:

(a)   Those portions of the transcript of Witness 2’s evidence identified in an email from the Associate to Davies J of 10 June 2020 to Danka Mrdjenovic at the New South Wales Crime Commission, which email is annexed hereto in which those portions of the evidence are highlighted; and

(b)   A document reproducing those parts of the transcripts of Witness 2’s evidence that are highlighted (“the Witness 2 redacted transcript”).

5.   The evidence that is to be made available in accordance with orders (1) and (3) above are the Witness 1 redacted transcript and Witness 2 redacted transcript.

6.   The redacted transcripts are to be made available once the Court is satisfied that the redactions accord with the portions indicated in the identified emails.

7.   The redacted transcripts are to be made available to the legal representatives specified in order 1 by being collected from the Associate to Davies J by appointment on and from 15 June 2020.

8.   The redacted transcripts are not to be provided to or communicated to persons other than those identified in orders (1) and (3).

9.   No copies of the redacted transcripts are to be made without the leave of the Court.

10.   The Court notes that:

(a) On 2 March 2020 the Court gave the New South Wales Crime Commission a certificate pursuant to s 45(4) of the Crime Commission Act 2012 (NSW).

(b)   Pursuant to that certificate, the New South Wales Crime Commission made certain evidence available to the Court on a confidential basis on 6 March 2020.

(c) Pursuant to s 45(5) of the Crime Commission Act 2012 (NSW), the Court is satisfied that:

(i)   The accused Ahmed Jaghbir is charged with an offence before the Supreme Court;

(ii) The evidence contained in the redacted transcripts is subject to a non-publication order made by the Crime Commission pursuant to s 45(1) of the Crime Commission Act 2012 (NSW); and
(iii)   The interests of justice require that the redacted transcript be made available to the legal representatives specified in orders (1) and (3) above, on the conditions set out in orders (2), and (4) to (9) above.
Catchwords:
CRIMINAL PROCEDURE – application under s 45(5) of the Crime Commission Act 2012 (NSW) to release evidence given before Crime Commission – factors relevant to whether the interests of justice “require” release – whether the interests of justice must be impeded or frustrated if evidence not released - where Court makes an assessment of the “worth” of the examination material – where certain evidence is released

Legislation Cited:
Crime Commission Act 2012 (NSW)

Cases Cited:
R v Hawat (No 1) [2019] NSWSC 1583
R v Munshizada, Danishyar and Baines [2020] NSWSC 566
R v Qaumi (No 11) [2016] NSWSC 252

Texts Cited:
Nil

Category: Procedural and other rulings
Parties: Crown
Ahmed Jaghbir (Accused)
Representation:
Counsel:
P Barrett (Crown)
G James QC & E James (Accused)
S Vorreiter & D Mrdjenovic (New South Wales Crime Commission)
P Lange (Witness 2 - interested party)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Abbas Jacobs Lawyers (Accused)
Legal Unit, New South Wales Crime Commission (NSW Crime Commission)
Hanna Legal (Witness 2 - interested party)

File Number(s): 2017/337859

JUDGMENT

Ahmed Jaghbir is charged that between 2 and 10 March 2017 he procured and counselled unknown persons to commit a serious indictable offence, namely, murder Kemel Barakat on 10 March 2017.
By a notice of motion dated 28 February 2020 the Crown sought orders that pursuant to s 45(4) of the Crime Commission Act 2012 (NSW) the transcript of compulsory evidence given before the New South Wales Crime Commission on 12 July 2017, 18 October 2017, 24 May 2018 and 30 July 2018 be made available to the Court.
On 2 March 2020 I gave a certificate pursuant to s 45(4) that it may be desirable in the interests of justice that particular evidence given before the New South Wales Crime Commission on those days be made available to the accused and to the prosecutor, and I certified that the Commission make the evidence available to the Court. Subsequently, on 9 March 2020 the accused filed a notice of motion in the same terms as that filed by the Crown. Both parties made oral application pursuant to s 45(5) of the Crime Commission Act that the transcripts be made available to the Crown and the accused.
Prior to the applications under s 45(4) being made, I had been informed that the Crown would be seeking Basha enquiries in relation to four witnesses. Following receipt of the transcripts from the Crime Commission pursuant to the certificate given under s 45(4), I was informed of the names of those to be examined at the Basha enquiries. I shall refer to them as Witness 1 and Witness 2.
The transcripts and a confidential affidavit from a solicitor at the New South Wales Crime Commission were provided to me on 6 March 2020. The two persons whose transcripts were forwarded were Witness 1 and Witness 2. I read those transcripts, and the parties thereafter appeared before me on 16 March 2020 to make submissions in relation to the provision of that material as well as to the timing of the four intended Basha enquiries.
I was informed that an application had been made at an earlier time to a Magistrate in the Local Court in relation to two of the transcripts. That application had been refused. Both the Crown and the accused agreed that the present application was a new application, and the situation in which the Magistrate was asked to make the order under s 45(5) was a different one from the present position. The Crime Commission also accepted that position.
The procedure I followed was that I first heard from the Crime Commission in the absence of the Crown, the accused and the legal representatives of those parties. During that hearing I requested the solicitor for the Crime Commission obtain instructions to impart the names of the persons who had been examined by the Crime Commission to the Crown prosecutor and counsel for the accused.
The Crime Commission made clear that its essential purpose was to speak on behalf of one of the persons (Witness 1) who had been examined by the Crime Commission. The confidential affidavit referred to earlier dealt with that matter. I shall say more about the content of that affidavit in a confidential annexure to this judgment.
The other person examined by the Crime Commission (Witness 2) was represented by lawyers at the hearing on 16 March and subsequently. Following submissions by the Crime Commission, I heard from Mr Lange of Counsel who appeared for Witness 2, with the solicitor for the Crime Commission present, but in the absence of the Crown and those representing the accused.
Mr Lange submitted that until the Basha enquiry was held in respect of Witness 2, it would be difficult for me to assess the relevance of the Crime Commission transcripts in relation to Witness 2. A further complicating factor was that Witness 2 was being prosecuted for giving false evidence to the Crime Commission arising out of the transcripts I was being asked to consider. Mr Lange also directed my attention to the principles set out in R v Qaumi (No 11) [2016] NSWSC 252 and R v Hawat (No 1) [2019] NSWSC 1583.
The Court was then opened, and submissions were made by the Crown and Mr James QC, particularly in relation to the Basha enquiries and the need, perhaps, to return to those enquiries after the provision of the Crime Commission transcripts, if my determination was in favour of releasing them.
The Basha enquiries were unfortunately delayed by reason of the Covid-19 pandemic. Ultimately, a Basha enquiry took place in relation to Witness 1 on 9 June 2020. I was informed on that occasion that no purpose would be served by a Basha enquiry in relation to Witness 2 prior to the release of any transcripts because no information was available concerning that witness’s knowledge or involvement in matters related to the killing of the deceased. That witness had declined to provide a statement to the police or to the prosecuting authorities.
Following the Basha enquiry on 9 June 2020 I re-read the transcripts of the Crime Commission examinations. My associate, at my request, forwarded an email to the Crime Commission saying that I was minded to release certain identified parts of the examinations of Witness 1 and certain identified parts of the first examination of Witness 2. At the same time, my associate sent an email to the solicitor for Witness 2 saying that I was minded to release certain identified parts of the first examination of Witness 2. I then re-listed the matter to hear further submissions from the Crime Commission and from those acting for Witness 2.
The Crime Commission appeared but indicated that it would make no further submissions. Mr Lange again appeared. I provided to the parties orally a brief summary of my reasons for reaching the prima facie determination set out in the emails referred to. Mr Lange made submissions in reliance on parts of the judgment of Fagan J in R v Munshizada, Danishyar and Baines [2020] NSWSC 566. Mr Lange again submitted that the appropriate course was to examine Witness 2 at a Basha enquiry, and for the Court thereafter to consider whether the interests of justice required the release of the transcripts, depending on what Witness 2 said at the Basha enquiry.
On 12 June 2020 I made the orders appearing at the end of this judgment, and the orders were served on the Crime Commission, the parties and the lawyers for Witness 2. My reasons for doing so follow, both in this judgment which will be published to the parties, and in the confidential annexure.
In R v Quami, Hamill J discussed the meaning of “the interests of justice” and the word “require” in s 45(5). His Honour indicated at [18] that the sub-section sets a relatively high bar for an applicant who seeks release of the material. His Honour then set out at [23]-[31] matters that might be pertinent to the determination under s 45(5).
In R v Hawat N Adams J had regard to what was said in R v Quami and said:

[89]   Returning to the other discretionary factors militating for and against publication, I have had regard to those identified by Hamill J and added some of my own. I wish to emphasise that I am not suggesting that these matters were or were not present in the case before me; I state them as a matter of general principle. In doing so, I am satisfied that the starting point is that it is to be presumed that the evidence is not to be released unless the statutory test is met.
[90]   It seems to me that matters militating in favour of disclosure might include:
(1)   If the witness is already a Crown witness. It would then be necessary to have regard to whether the contents of the compelled testimony is consistent or, to quote Hamill J “patently inconsistent” with their anticipated trial evidence;
(2)   If the evidence is highly probative of an important issue at the trial;
(3)   If the evidence is exculpatory of the accused;
(4)   If the witness consents to the release of the material.
[91]   Similarly, it seems to me that matters militating against disclosure might include:
(1)   If the release of the material may place the witness in physical danger. As stated above, informers may be the target of reprisals. Expressions of fear by the witness in the course of their Crime Commission testimony will be a factor militating against the release of the material;
(2) If the witness refused to answers questions at the Crime Commission and was prosecuted under s 25(2) of the Crime Commission Act for such refusal. In these circumstances it is unlikely that the witness would give evidence in court, even under threat of being held in contempt of the court. In an extreme case, there is also a risk that such a witness could attempt to abort the trial if compelled to give evidence in court;
(3)   If a witness gave false or misleading evidence to the Crime Commission. This would impact on the witness’s credibility;
(4)   If the answers in the compelled testimony are fanciful;
(5)   If the ODPP application for the material was not made in a timely manner and release of the compelled testimony would lead to the trial having to be vacated.

More recently, in R v Munshizada Fagan J said this:

[9] From these considerations the potential gravity of ordering dissemination under s 45(5) has a bearing on the interpretation of the sub-section in at least two ways. First, it supports giving the word “require” in s 45(5) its ordinary meaning, conveying an imperative sense. I attribute to Parliament the intention that a non-publication order under s 45(1), made on a ground specified in s 45(2) for the protection of an examinee who is questioned compulsorily, should only be overridden by Court-ordered dissemination where that is necessary in the interests of justice. In R v Quami (No 11) [2016] NSWSC 252 at [17]-[18] Hamill J concluded that the word “require” is not used imperatively but that it “does set a relatively high bar for an applicant who seeks release of the material”. I doubt that the difference between his Honour’s interpretation of the sub-section and my own would give rise to any practical difference in its application.
[10] In my view, before s 45(5) will be engaged, the Court must be satisfied that dissemination is “required” in the sense that the interests of justice would otherwise be impeded or frustrated. It would not be sufficient that, upon reading the material, the Court should be left with no more than speculation that either the Crown or the defence could find it useful. A determination that the Commission’s evidence should be disseminated to the parties would depend upon the Court finding within it something that would have a material bearing upon the trial – and also that the Court should be satisfied that dissemination would not run counter to collateral aspects of the interests of justice, concerning persons who are not involved in the trial, such as the matters considered in the following paragraphs.
[11] Secondly, “the interests of justice” is a broad concept, as has been observed in other contexts such as those referred to by Hamill J in R v Quami (No 11) at [19]-[21]. Having regard to the potential for examinees to be affected by a decision under s 45(5), the interests of justice must be taken here to embrace not only the fairness of the trial but also the need to protect examinees from physical threat and the reasonable expectations of examinees that non-publication directions will be enforced.

In Munshizada, Fagan J considered what he knew of the criminal trial in respect of which the transcripts were sought. His Honour said in that regard:

[14]   As to the issues in the trial, the Court has no knowledge of the points at which the Crown’s evidence will be tested and challenged. The Court cannot foresee what objections to evidence may be taken by defence counsel or whether they will succeed. Nor can it anticipate whether any of the accused will give evidence or call witnesses or, if so, what issues may arise from such evidence.
[15]   In this state of affairs the Court could only be satisfied that “the interests of justice […] require” that the evidence produced by the Commission under the certificates should be made available to the parties if:
(1)   it would materially add to the Crown case or
(2)   it would contradict or raise a reasonable doubt about the Crown case or
(3)   it would disclose a real possibility that further specific enquiries based upon the Commission’s transcripts may identify additional evidence that would materially add to the Crown case or contradict it or raise a reasonable doubt about it.

Although Fagan J doubted at [9] that the difference between Hamill J’’s interpretation of s 45(5) and Fagan J’s own interpretation would give rise to any practical difference in its application, his Honour went on to say:

[10] … the Court must be satisfied that dissemination is “required” in the sense that the interests of justice would otherwise be impeded or frustrated.

With great respect, I cannot accept that dissemination is only required if the interests of justice would otherwise be impeded or frustrated. That seems to me to be a more stringent test than Hamill J concluded the section stipulated.
The Court on a s 45(5) application must make an assessment of the worth of the examination material. Evidence given in an examination may be germane or even significant to an issue, judged by what is known of the Crown case, the defences, and what appears in the Crown brief. I accept that the Court needs to have more than speculation that either the Crown or the defence could find the material useful at the trial. However, it may be germane or significant without its absence impeding or frustrating the interests of justice. For example, in a circumstantial case, the evidence may add to the strands in the cable, or detract from one or more strands, without its absence meaning that the interests of justice would be impeded or frustrated. In such a case, I consider that the interests of justice would require disclosure.
I cannot articulate the reasons for the orders I will make for the release of portions of the transcripts in a judgment that is published to the parties. That arises because of the nature of the Crime Commission hearings and the evidence which has been given at them. However, the Crime Commission is entitled to understand the basis for my determination, and it is necessary to set out my reasons so that my decision is properly amenable to appeal. Those reasons are recorded in the confidential annexure to this judgment.
I have had regard to the principles set out in R v Quami (No 11), R v Hawat and Munshizada (with the qualification I have mentioned). On that basis and on the basis of the more detailed reasons given in the confidential annexure to this judgment, I made the following orders:

1. Subject to orders (3) and (5) to (9) below, certain evidence given on 12 July 2017 and 18 October 2017 to the New South Wales Crime Commission by the witness referred to as Witness 1 is to be made available to:

(a) The Crown prosecutors and solicitors acting for the Crown in these proceedings; and
(b) Mr G James QC, Mr E James and the solicitors instructing them for the accused Ahmed Jaghbir in these proceedings.

2.   The New South Wales Crime Commission is to produce to the Court the following documents on or before 15 June 2020:
(a)   Those portions of the transcripts of Witness 1’s evidence identified in an email from the Associate to Davies J of 10 June 2020 to Danka Mrdjenovic at the New South Wales Crime Commission and in the email from the Associate to Davies J to Georgiana Guirguis at the New South Wales Crime Commission of 11 June 2020 both of which emails are annexed hereto, in which those portions of the evidence are highlighted; and
(b)   A document reproducing those parts of the transcripts of Witness 1’s evidence that are highlighted (“the Witness 1 redacted transcript”).

3.   Subject to orders (4) to (9) below, certain evidence given on 24 May 2018 to the New South Wales Crime Commission by the witness referred to as Witness 2 is to be made available to:
(a)   The Crown prosecutors and solicitors acting for the Crown in these proceedings;
(b)   Mr G James QC, Mr E James and the solicitors instructing them for the accused Ahmed Jaghbir in these proceedings; and
(c)   Mr Peter Lange of counsel and Mr Nick Hanna, the legal representatives for Witness 2.

4.   The New South Wales Crime Commission is to produce to the Court on or before 15 June 2020:
(a)   Those portions of the transcript of Witness 2’s evidence identified in an email from the Associate to Davies J of 10 June 2020 to Danka Mrdjenovic at the New South Wales Crime Commission, which email is annexed hereto in which those portions of the evidence are highlighted; and
(b)   A document reproducing those parts of the transcripts of Witness 2’s evidence that are highlighted (“the Witness 2 redacted transcript”).

5.   The evidence that is to be made available in accordance with orders (1) and (3) above are the Witness 1 redacted transcript and Witness 2 redacted transcript.
6.   The redacted transcripts are to be made available once the Court is satisfied that the redactions accord with the portions indicated in the identified emails.
7.   The redacted transcripts are to be made available to the legal representatives specified in order 1 by being collected from the Associate to Davies J by appointment on and from 15 June 2020.
8.   The redacted transcripts are not to be provided to or communicated to persons other than those identified in orders (1) and (3).
9.   No copies of the redacted transcripts are to be made without the leave of the Court.
10.   The Court notes that:
(a) On 2 March 2020 the Court gave the New South Wales Crime Commission a certificate pursuant to s 45(4) of the Crime Commission Act 2012 (NSW).
(b)   Pursuant to that certificate, the New South Wales Crime Commission made certain evidence available to the Court on a confidential basis on 6 March 2020.
(c) Pursuant to s 45(5) of the Crime Commission Act 2012 (NSW), the Court is satisfied that:
(i)   The accused Ahmed Jaghbir is charged with an offence before the Supreme Court;
(ii) The evidence contained in the redacted transcripts is subject to a non-publication order made by the Crime Commission pursuant to s 45(1) of the Crime Commission Act 2012 (NSW); and
(iii)   The interests of justice require that the redacted transcript be made available to the legal representatives specified in orders (1) and (3) above, on the conditions set out in orders (2), and (4) to (9) above.

**********

Amendments

22 September 2020 - Publication restriction removed – judgment published

Decision last updated: 22 September 2020

Medium Neutral Citation:	R v Jaghbir (No 1) [2020] NSWSC 762
Hearing dates:	16 March 2020 & 9 June 2020
Date of orders:	12 June 2020
Decision date:	18 June 2020
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Subject to orders (3) and (5) to (9) below, certain evidence given on 12 July 2017 and 18 October 2017 to the New South Wales Crime Commission by the witness referred to as Witness 1 is to be made available to: (a) The Crown prosecutors and solicitors acting for the Crown in these proceedings; and (b) Mr G James QC, Mr E James and the solicitors instructing them for the accused Ahmed Jaghbir in these proceedings. 2. The New South Wales Crime Commission is to produce to the Court the following documents on or before 15 June 2020: (a) Those portions of the transcripts of Witness 1’s evidence identified in an email from the Associate to Davies J of 10 June 2020 to Danka Mrdjenovic at the New South Wales Crime Commission and in the email from the Associate to Davies J to Georgiana Guirguis at the New South Wales Crime Commission of 11 June 2020 both of which emails are annexed hereto, in which those portions of the evidence are highlighted; and (b) A document reproducing those parts of the transcripts of Witness 1’s evidence that are highlighted (“the Witness 1 redacted transcript”). 3. Subject to orders (4) to (9) below, certain evidence given on 24 May 2018 to the New South Wales Crime Commission by the witness referred to as Witness 2 is to be made available to: (a) The Crown prosecutors and solicitors acting for the Crown in these proceedings; (b) Mr G James QC, Mr E James and the solicitors instructing them for the accused Ahmed Jaghbir in these proceedings; and (c) Mr Peter Lange of counsel and Mr Nick Hanna, the legal representatives for Witness 2. 4. The New South Wales Crime Commission is to produce to the Court on or before 15 June 2020: (a) Those portions of the transcript of Witness 2’s evidence identified in an email from the Associate to Davies J of 10 June 2020 to Danka Mrdjenovic at the New South Wales Crime Commission, which email is annexed hereto in which those portions of the evidence are highlighted; and (b) A document reproducing those parts of the transcripts of Witness 2’s evidence that are highlighted (“the Witness 2 redacted transcript”). 5. The evidence that is to be made available in accordance with orders (1) and (3) above are the Witness 1 redacted transcript and Witness 2 redacted transcript. 6. The redacted transcripts are to be made available once the Court is satisfied that the redactions accord with the portions indicated in the identified emails. 7. The redacted transcripts are to be made available to the legal representatives specified in order 1 by being collected from the Associate to Davies J by appointment on and from 15 June 2020. 8. The redacted transcripts are not to be provided to or communicated to persons other than those identified in orders (1) and (3). 9. No copies of the redacted transcripts are to be made without the leave of the Court. 10. The Court notes that: (a) On 2 March 2020 the Court gave the New South Wales Crime Commission a certificate pursuant to s 45(4) of the Crime Commission Act 2012 (NSW). (b) Pursuant to that certificate, the New South Wales Crime Commission made certain evidence available to the Court on a confidential basis on 6 March 2020. (c) Pursuant to s 45(5) of the Crime Commission Act 2012 (NSW), the Court is satisfied that: (i) The accused Ahmed Jaghbir is charged with an offence before the Supreme Court; (ii) The evidence contained in the redacted transcripts is subject to a non-publication order made by the Crime Commission pursuant to s 45(1) of the Crime Commission Act 2012 (NSW); and (iii) The interests of justice require that the redacted transcript be made available to the legal representatives specified in orders (1) and (3) above, on the conditions set out in orders (2), and (4) to (9) above.
Catchwords:	CRIMINAL PROCEDURE – application under s 45(5) of the Crime Commission Act 2012 (NSW) to release evidence given before Crime Commission – factors relevant to whether the interests of justice “require” release – whether the interests of justice must be impeded or frustrated if evidence not released - where Court makes an assessment of the “worth” of the examination material – where certain evidence is released
Legislation Cited:	Crime Commission Act 2012 (NSW)
Cases Cited:	R v Hawat (No 1) [2019] NSWSC 1583 R v Munshizada, Danishyar and Baines [2020] NSWSC 566 R v Qaumi (No 11) [2016] NSWSC 252
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Crown Ahmed Jaghbir (Accused)
Representation:	Counsel: P Barrett (Crown) G James QC & E James (Accused) S Vorreiter & D Mrdjenovic (New South Wales Crime Commission) P Lange (Witness 2 - interested party) Solicitors: Office of the Director of Public Prosecutions (Crown) Abbas Jacobs Lawyers (Accused) Legal Unit, New South Wales Crime Commission (NSW Crime Commission) Hanna Legal (Witness 2 - interested party)
File Number(s):	2017/337859