R v Qaumi and Ors (AVL)

[2015] NSWSC 1711

Supreme Court

New South Wales

Medium Neutral Citation:

R v Qaumi & Ors (AVL) [2015] NSWSC 1711

Hearing dates:

9,11,13 November 2015

Date of orders:

18 November 2015

Decision date:

18 November 2015

Jurisdiction:

Common Law - Criminal

Before:

Hamill J

Decision:

(1) Each of the persons known as witnesses 'A', 'B', 'J' and 'K' be permitted to give their evidence at the pre-trial hearing by audio visual link pursuant to the provisions of s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).

 

(2) Otherwise, the applications for directions under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) are refused.

(3) For the purposes of these proceedings, including any other or further interlocutory applications conducted in connection with these proceedings, the proposed Crown witnesses who have given statements under the identifying pseudonym letters "A" to "L" inclusive (collectively "the witnesses"), shall each be referred to by the name recorded hereunder beside each said pseudonym letter ("collectively the witnesses' names"):
(a) Witness A    
(b) Witness B
(c) Witness C
(d) Witness D
(e) Witness E
(f) Witness F
(g) Witness G
(h) Witness H – Michael Odisho
(i) Witness I
(j) Witness J
(k) Witness K
(l) Witness L

 

(4) The interim suppression and non-publication orders made on 2 November 2015 are revoked and the following orders are made.

 

(5) Except for the purposes of issuing subpoenas, the names of the witnesses referred to in Order (3) be suppressed until further order of the Court pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”), together with any evidence, submission, discussion, document or information that might facilitate the identification of the witnesses names, on the following grounds:
(i) the order is necessary to prevent prejudice to the proper administration of justice;
(ii) the order is necessary to protect the safety of the witnesses;
(iii) the order is necessary in the public interest.

 

(6) Except for the purposes of issuing subpoenas, publication of the witnesses' names be restricted until further order of the Court, pursuant to s 7 of the Act, to the respective pseudonym letters allocated to each witness in Order 3 (a) to (I) above, on the grounds set out in Order 5 (i) to (iii) above.

 

(7) Without limiting the generality of Orders 5 and 6 above, any description or depiction of the physical appearance or other identifying feature of any or all of the witnesses be suppressed until further order of the Court, pursuant to s 7 of the Act, except as might be necessary for the proper conduct of the proceedings, on the grounds set out in Order 5 (i) to (iii) above.

 

(8) Pursuant to s 7 of the Act, and until further order, there is to be no publication of the evidence, information given about the evidence or submissions made in the pre-trial hearing on the ground that the order is necessary to prevent prejudice to the proper administration of justice.

 

(9) Orders 5, 6, 7 and 8 above are to apply throughout the Commonwealth of Australia, pursuant to s 11 (2) of the Act.

 (10) The Court is to be closed for the duration of the evidence given by each of the witnesses referred to in Order (3) in the pre-trial proceedings, such closure of the Court being subject to the following persons being permitted to be present in the Court while those witnesses give evidence:
(a) The legal representatives of the accused persons;
(b) The legal representatives of the Director of Public Prosecutions;
(c) Legal representatives for the Commissioner of Police;
(d) Staff of the Department of Corrective Services and Sheriff’s Office;
(e) Court staff; and
(f) Officers of the NSW Police Force involved in arrangements for the protection of the witnesses.

Catchwords:

CRIMINAL LAW – audio-visual link – application for informant witnesses to give evidence by AVL – evidence of risk to witnesses – evidence of violence perpetrated by accused – motive for accused to harm witnesses – fears and anxiety expressed by witnesses – onus on party seeking order – administration of justice – relevant considerations – encouragement of future witnesses to assist police – prejudice to accused – right to confront accuser – submission that application "melodramatic" - where the informants in previous cases "out in the suburbs growing old with their mortgages and their ungrateful children" - necessity to consider individual circumstances of witnesses – whether court security sufficient – assessment of extent of risk – allegation that evidence orchestrated –allegation the police had conflict of interest

  CRIMINAL LAW – suppression and non-publication orders – closure of court – informant witnesses – public interest in protection of such witnesses

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)
Court Suppression and Non-Publication Orders Act 2010 NSW
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:

BUSB v R [2011] NSWCCA 39
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125
John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344
John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344
R v Darwiche & Ors [2006] NSWSC 926
R v Davis [2008] UKHL 36
R v Hawi and Ors (No 2) [2011] NSWSC 1648
R v Hawi and Ors (No 9) [2011] NSWSC 1655
R v Lodhi [2006] NSWSC 587
R v Murphy [1990] NI 306
R v Ngo [2003] NSWCCA 82
R v Ngo; Dinh; Dao [2001] NSWSC 339
R v NK (No 3) [2015] NSWSC 1257

Category:

Principal judgment

Parties:

Regina
Farhad Qaumi
Mumtaz Qaumi
Jamil Qaumi
Witness M
Mohammed Zarshoy
Mohammed Nasiri
John Bishop (aka John Bischoff)
Mohammed Kalal

Representation:

Counsel:
K McKay & P Hogan (Crown)
A Hill (Commissioner of Police)
J Stratton SC & M Curry (F Qaumi)
P Young SC (M Quami)
W Brewer (J Quami)
T D F Hughes (Witness M)
R Driels (Zarshoy)
P Doyle (Nasiri)
T Evers (Bishop)
J Nicholson SC (Kalal)

  Solicitors:
Solicitor for the NSW DPP(Crown)
Archbold Legal (F Qaumi)
George Sten & Co (M Quami)
Bannisters Lawyers (J Quami)
Oxford Lawyers (Witness M)
Zahr Lawyers (Zarshoy)
Doyle Legal (Nasiri)
Takchil Law (Bishop)
Hallak Law (Kalal)

File Number(s):

Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260Jamil Quami - 2013/336086; 2014/18164; 2014315253Witness M – 2014/90422; 2014/315510Mohammad Zarshoy – 2014/316236Mohammed Nasiri – 2014/86158John Bishop – 2014/250431Mohammad Kalal - 2013/344739; 2014/66939

Publication restriction:

No publication until further order.

Judgment

1. The eight accused stand charged on an indictment containing 36 counts. The allegations include two counts of murder, several counts of shooting with intent to murder or conspiring or inciting murder, various offences involving attempts at extortion involving the use of guns, firearms offences and a serious drug offence. Some of the accused are charged with most of the individual offences. Others are charged only with a few of the offences. All of them (except for Mr Nasiri whose plea in bar was sustained[1] ) stand charged with an offence under s 93T Crimes Act1900 (NSW) of participating in a criminal group, namely the Brothers For Life (“BFL”). All of the offences arise out of the actions of that group and specifically what has been called the “Blacktown Chapter” of the BFL. It is the Crown case that all of the accused were members of the Blacktown BFL. On the prosecution case, nineteen of the charges (counts 11-29) arise out of a dispute between the Blacktown BFL and the “Bankstown Chapter” of the BFL. Members of the Bankstown BFL are said to be victims of five separate shooting incidents.

   1. Narisir v R [2015] NSWSC 1649.

2. The Director of Public Prosecutions seeks orders pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (“AVL orders”) whereby 12 witnesses be permitted to give evidence by means of an audio visual link. The witnesses in question are described by the parties, variously, as “informant witnesses”, “roll-over witnesses” and “indemnified witnesses”. Ten of the witnesses are (or say that they are) former members of the Blacktown BFL. While their evidence may receive some support from other sources, it is fair to say that the evidence of these witnesses taken as a whole is critical to the case that each of the accused has to meet.

3. The New South Wales Commissioner of Police, separately represented by the New South Wales Crown Solicitors Office, supports the Director’s application for the AVL orders. The Commissioner also seeks a number of other orders, some of which are related to the application for AVL and all of which are calculated to protect the safety of the witnesses, maintain the integrity of the process and maintain the public interest in encouraging witnesses to come forward and assist police in the prosecution of cases involving gangland violence.

4. The Commissioner’s application was foreshadowed for the first time on the first day of the pre-trial hearing (2 November 2015). That date was set when the accused were first arraigned before me on 27 July 2015, that is to say more than three months ago. None of the accused was on notice of the application. The Commissioner was not ready to proceed by way of notice of motion or supporting evidence until 9 November 2015. On that date a notice of motion was filed in Court and part of the evidence ultimately relied on was read. Further evidence of some significance was produced the following day. The conduct of the application at such a late stage and in such a manner has caused a considerable delay in the proceedings and a waste of court and other resources.

5. In any event, the orders sought can generally be described as follows: –

1. Suppression and non-publication orders in respect of the witnesses’ names and material that may lead to their identification.

2. In the event that AVL facilities are used with respect of any or all of the witnesses, orders that the AVL monitors be positioned in such a way as to prevent the witnesses being seen by the accused “and/or” members of the public for the duration of the testimony of the witnesses.

3. If AVL is not used, an order that a screen or screens be used during the testimony of each of the witnesses to prevent the witness being seen by the accused persons “and/or” members of the public.

4. If a screen order is made, an order that the Court be closed and the accused be required to leave the court room as the witnesses come and go from court.

5. In the further alternative to orders 3 and 4 above, an order that the court be closed during the evidence given by the witnesses. That order would be subject to a number of obvious exceptions.

6. Orders that the Commissioner be granted first access to material produced on subpoenas in order that redactions could be made of any information that might reveal the whereabouts or identification of the twelve witnesses. I have already made an order to this effect and it will remain in force.

6. The notice of motion was supported by an open affidavit of Assistant Commissioner Peter Barrie, a confidential or closed affidavit of the same police officer and statements of 10 of the 12 witnesses named in the notice of motion expressing their preference as to the manner in which they might give evidence and the reasons for that preference. In addition, Ex VD-B on the voir dire is seven volumes of material comprising a large number of statements and interviews provided by the 12 witnesses subject to the proposed order. On the second day of the argument, a statement was tendered annexing a transcript of certain telephone intercepts involving some of the accused (Ex VD-K).

7. Each of the accused, represented by counsel, opposes the orders sought by the Commissioner and by the prosecutor. In addition to the material tendered by the Crown, counsel brought to my attention an Instagram post by one of the witnesses in which he “posted” parts of the statements of two of the other witnesses (MFI 8) and a synopsis of a recording between three of the witnesses (Ex VD-3). Reliance was also placed on a document tendered by the Crown that sets out the various benefits that some of the witnesses have obtained by agreeing to give evidence (Ex VD-J).

8. The following arguments were put by the prosecution and the Commissioner in support of the application:–

1. The witnesses in question are informant witnesses and their safety is in danger. The danger to the witnesses comes in two forms. First, there is a risk that there will be an incident in or near Court which would result in harm coming to the witnesses. Secondly, if their identity is made public, they may be at risk of reprisal from people associated with the accused, the Bankstown BFL, others nominated as victims of the various crimes or people in the community who disapprove of people providing informant type evidence.

2. The witnesses have expressed concern that if they are required to give evidence in the court room, and in the presence of the accused and members of the public, they will be unable to provide evidence to the best of their ability. This is based on fears they have of the accused and the anxiety that would be engendered in being in their presence.

3. There is a public interest in protecting these particular witnesses because a failure to do so will discourage future witnesses from assisting in police investigations. In this respect the Commissioner relies on well-known principles concerning public interest immunity which arise and exist to protect informant witnesses.

4. There is a concern expressed in the affidavit of Mr Barrie in relation to the use of police (and sheriff and corrective services) resources if the witnesses are required to give evidence in court. It is asserted that there will be significant additional resources and expenses resulting from the need to protect the witnesses as they travel to and from the courtroom.

9. It is unnecessary for the purpose of this judgment to set out in great detail the allegations contained in the 36 counts. It is sufficient to note that the allegations include two counts of murder committed in extreme circumstances. The first of the murder charges involves a reasonably well-planned attack on a rival gang member resulting in one person being killed by gunshot wound and another being seriously injured by similar means. The second count of murder involved a cold-blooded execution by gun shot at the front door of the victim in circumstances where it will be alleged that two of the accused persons accepted a contract to carry out the killing.

10. There are also a number of other shooting incidents (eight on a quick count). In a number of those, people (including a child) received gunshot wounds. Four of those incidents are closely related to the first murder offence. There are also three separate offences involving the use of firearms and their discharge in connection with the theft of drugs and a motor car by stand over tactics. Finally, there are a series of offences of supplying a commercial quantity of drugs, possession of a firearm and participation in a criminal group.

11. In addition to the charges themselves, the Crown also seeks to lead evidence of tendencies on the part of the various accused. Within the volumes of statements and interviews made by the informant witnesses, there are numerous instances of BFL members being subject to brutal treatment by the alleged leaders of the group. This included being bashed by the group at the direction of the leader, being struck with a dumbbell and being shot or threatened with shooting. Further, the witnesses in various ways explain their fears of the alleged leaders of the criminal group and provide evidence that they remain in fear of him (or them) to this day.

12. It is unnecessary to venture beyond that. If accepted, the allegations on their face establish the assertion by Mr Barrie that the Blacktown BFL operated on a regime of fear, intimidation and violence and have a “propensity for extreme violence and access to firearms”. While the accused each enjoy the presumption of innocence, for the purpose of an application such as the present, the seriousness of the allegations must be given significant weight.

13. I accept that the evidence before me, which remains entirely untested, is sufficient to give rise to the fears expressed by each of the witnesses. The nature and extent of the criminality asserted also supports the fears expressed by Mr Barrie that the witnesses’ physical safety, if not their lives, are at risk if the court fails to make orders calculated to protect them.

14. I also accept that if the Court fails to make orders designed to protect the witnesses, within the confines of providing a fair trial for both parties, the future investigation of criminal organisations may be jeopardised because informant style witnesses may be reluctant to come forward.

15. It was put rather colourfully by Senior Counsel for Mumtaz Qaumi that informant witnesses in previous well-known and notorious trials, involving persons with reputations for violence as formidable as that of the Blacktown BFL, were “all out in the suburbs growing old with their mortgages and their ungrateful children”. It was put that those witnesses are just living normal lives and that the application had an air of melodrama and involved “crying wolf”.

16. While the Crown and the Commissioner were unable to (or did not) put before me any evidence of an occasion when actual harm came to informant witnesses, it is a notorious fact that such witnesses are subject to significant discomfort, and often serious violence, while serving sentences.

17. Furthermore, while it was subject to significant and well founded criticism in terms of its relevance and form, Ex VD-K demonstrates that Mumtaz Qaumi (at least) has contacts outside of the prison, the means to contact such persons and the motive and the will to perpetrate extreme violence to stop witnesses he considers might “snitch on us” from giving evidence.

18. It should be stressed that it would only take one incident involving the killing or injuring of such a witness for the motivation for future informant witnesses to cooperate with the police to evaporate.

19. For those reasons, I have no doubt that protective orders of some nature should be made. The question is largely one of considering and balancing the interests of both parties, the right of the accused to a fair (if not perfect) trial along with the interests of the witnesses and the public interest in their protection as I have already articulated it.

Suppression and non-publication orders

20. Section 7 of the Court Suppression and Non-Publication Orders Act2010 (NSW) (“the Act”) provides that suppression and non-publication orders may be made where:

“(a) the order is necessary to prevent prejudice to the proper administration of justice,

(c) the order is necessary to protect the safety of any person,

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.”

21. I am satisfied that orders under the Act should be made. Those orders should include orders which prohibit the publication of any description or depiction of the physical appearance or other identifying feature of the witnesses. The order should be made throughout the Commonwealth and until further order. The orders sought in the notice of motion appear to be in appropriate form.

22. In coming to that conclusion I have applied what is sometimes called the principle of “necessity” (inherent in the common law and in s 8 of the Act). I have also taken into account the provision in s 6 which requires me “to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”.

hiding the identity of THE WITNESSES from the accused

23. At the commencement of the pre-trial hearing, a number of counsel for the accused complained that the brief as served contained large amounts of redaction of material going to the identity of particular witnesses. Further, the witnesses’ names had been redacted and in their place pseudonyms, by way of letters A to L, had been put in place. As a result, it was at times very difficult to follow or understand the narrative.

24. As I observed at the time, there was an air of unreality in the situation. The identity of the witnesses would be obvious to any and each of the accused by reference to the statements and interviews of the witnesses whose identities was masked. The absurdity of the situation was demonstrated when counsel for Mr Bishop handed up a document (MFI 1) which set out the names of the witnesses A through L (with one exception). She had been able to work out the names from her knowledge of the brief and the facts of the case. In a somewhat farcical moment, when the Instagram post (MFI 8) was handed up by Senior Counsel for Mr Kalal, I asked whether the account holder (Michael Odisho, the victim named in counts 14-16, who appears to have posted photographs of statements made by witnesses then named “A” and “D”) was expected to be a witness. One of the accused called out from the dock “he is witness H”.

25. When the Commissioner eventually brought its notice of motion, each of the witnesses was identified in the notice of motion and no pseudonym order was sought. It became clear that witness H is, in fact, Michael Odisho and that counsel’s list of informant witnesses was accurate.

26. There are cases where it has been held to be appropriate to hide the identity of particular witnesses even from the accused and their representatives: see, for example, BUSB v R [2011] NSWCCA 39, R v Hawi and ors(No 9) [2011] NSWSC 1655, R v Murphy [1990] NI 306; contra R v Davis [2008] UKHL 36. However, the idea that such a precaution was necessary in this case was misconceived and, eventually, not pressed. Large parts of the brief have now been re-served and my copy of those parts tendered on the voir dire have been replaced with unredacted (or less redacted) versions. I have no doubt that the redactions were made with the best of intentions but the fact of the matter is that it has resulted in significant doubling up of work and caused further delay.

RELEVANT PRINCIPLES, LEGISLATION AND CASE LAW

27. Section 5B(1) of the Evidence (Audio and Audio Visual Links) Act1998 (NSW) (“AVL Act”) allows the Court to direct that evidence be taken by audio visual link from any place in or outside of Australia. Sub-section (2) prohibits the making of such an order in certain circumstances. Paragraphs (a), (b) and (d) are not applicable but paragraph (c) is relied on by the accused. It provides that an AVL direction must not be made if “the court is satisfied that the direction would be unfair to the party”. It is doubtful that “the party” in sub-s (c) is a reference to the accused. In any event, sub-s (3) provides:

“(3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.”

28. The Crown and the Commissioner submit that it has been established that it is in the interests of the administration of justice to make the order.

29. In BUSB v R [2011] NSWCCA 39, Speigelman CJ pointed out at [83]:

“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.”

30. In Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125, the Court discussed the concept of the administration of justice in the context of suppression and non-publication orders:

“48. The broader concept of the administration of justice, including consequences not just for the present case but for future cases, including the supply of information from victims of unlawful conduct and the willingness of witnesses to give evidence, accords with the approach taken in this Court: see John Fairfax Group Pty Ltd (Receivers and managers appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 at 161 D-E (Mahoney JA, Hope AJA agreeing), approved in John Fairfax Publications Pty Ltd v District Court at [47] (Spigelman CJ, Handley JA and MW Campbell AJA agreeing) and in R v Kwok [2005] NSWCCA 245; 64 NSWLR 335 at [13] (Hodgson JA), [34] (Howie J) and [38]-[40] (Rothman J); see also Batistatos v Roads & Traffic Authority of NSW [2006] HCA 27; 226 CLR 256 at [12]. Each of these cases was dealing with the implied power of courts, operating prior to the commencement of the Suppression Orders Act, and each involved orders which impinged on the operation of the open justice principle. Accepting that broad view, at least in some circumstances, the factors referred to in paragraphs (c) and (d) of s 8(1) may overlap with (a), because orders falling within those paragraphs might also be necessary to prevent prejudice to the proper administration of justice.”

31. In R v Ngo; Dinh; Dao [2001] NSWSC 339, two witnesses were reluctant to give evidence in the presence, or in sight of, the accused. The trial Judge ordered that the evidence be taken by CCTV and that the screen be arranged so that the accused could not see the witnesses. Dunford J said:

“15. There may be some justification for the fears expressed by the witnesses, although there is no evidence that any of the occurrences giving rise to their fears are in any way referable to any of the accused. But irrespective of whether there is any cause or justification for their fears, I am satisfied that their fears are genuinely held and that they probably would not give the evidence if they were required to do so face to face in the courtroom in the presence of the accused. I am also satisfied that even if they did give the evidence, because of their fears, rightly or wrongly but genuinely held, they would not justice do to themselves as witnesses and it is therefore in the interest of the administration of justice to make the order.”

32. However, his Honour went on to issue a note of caution as to the use of the procedure:

“26. Mr Cusack QC made a further submission to the effect that to allow this evidence to be given by video-link would ‘open the floodgates’ so as to permit any witness who was reluctant to confront an accused in person in the courtroom to seek to have a similar order made. I do not regard the provisions as being open to such a broad interpretation and the exercise of the power to order prosecution evidence in criminal trials to be given in this way must be carefully circumscribed. On the other hand, this trial has been described as "high profile". A politician was shot dead outside his home and the Crown allegation is that it was organised by the accused Phuong Ngo for his own political advancement. It is therefore most desirable that in a case such as this all available evidence is placed before the jury so that, so far as possible, the facts may be properly and correctly ascertained. I am satisfied that this was an appropriate case to make an order similar to that made by Wood CJ at CL on the earlier occasion.”

33. His Honour’s decision was upheld on appeal: R v Ngo [2003] NSWCCA 82. The Court observed:

“78. The Crown makes the point that while it is a fundamental common law right of an accused to have the Crown case presented in his presence and hearing, a fair trial involves fairness to the Crown as well as to the accused, see McKinney v R (1991) 171 CLR 468 at 488 and R v Lowe (1997) 98 A Crim R 300 at 318 - 319. It was essential that the two witnesses be able to present their evidence to the best of their ability and not in circumstances where they would be too intimidated to do so. The trial judge recognised the risk of unfairness to the appellant and carefully considered all matters of fact and law raised in the application.”

34. The Court examined overseas and Australian authorities from [82]-[102] and noted at [103] that “the Act does not seek to be the exhaustive provision for the means of taking evidence in proceedings.” The Court concluded:

“106. In our view, his Honour was entitled to conclude, given that the fears of the Ls’ were genuinely held, that they would probably not give evidence if required to do so face to face with the appellant in the courtroom. Although sub-para (d) is a pre-condition to the exercise of the power, it involves a discretionary assessment. His Honour saw and heard the evidence on the voir dire and was in a much superior position to this Court to make the necessary assessment. The nature of the subject matter, whether the Ls’ genuinely held fears for their safety and that of their family would prevent or impede them from giving adequate evidence in court, is pre-eminently one for a trial judge and this court would not interfere unless the principles enunciated in House v The King (1936) 55 CLR 499 at 504 – 505 were breached. No such breach is apparent.

107. Accordingly, we may proceed to subpara (c), which is critical. There are some tensions between this clause and s 5B(3) but we think that they dissolve if the Court entertaining such a direction, on its own motion or on application, first considers whether the preconditions under s 5B(2) are satisfied. It is only if they are satisfied that the court visits s 5B(3).

108. Making a direction that the evidence of an accusing witness be received by audiovisual link external to the courtroom must, by its very nature, involve unfairness to an accused because it deprives him or her of a face-to-face confrontation with the witness. The provision cannot mean any unfairness, however small. The Court must consider the degree and effect of the unfairness. In a criminal trial, the best measure is whether the making of a direction will cause the trial to be an unfair one to the accused. An accused person has the fundamental right to a fair trial. A direction should not be made if it would mean that an accused could not have a fair trial.”

…

124. This means that we can now address the requirements of s 5B(3). Where a party opposes a direction being made, the court ‘must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so’. This places an onus on the prosecution, which made the subject application, to so satisfy the Court. 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.”

35. Reference was also made in argument to R v Lodhi [2006] NSWSC 587. That case concerned the provisions in s 15YV of the Crimes Act 1914 (Cth) in s 15YV. That provision places the onus on the accused to satisfy the court that “it would be inconsistent with the interests of justice for the evidence to be given by video link”. The legislation governing the present application does not cast the onus on the accused. On the contrary, it is for the party seeking to use the AVL facility to satisfy the Court that it is in the interests of the administration of justice to make the direction.

36. The Court is to consider the wide variety of matters that inform the concept of “the interests of the administration of justice” and fairness to each of the parties. As the Court pointed out in R v Ngo at [108] “making a direction that the evidence of an accusing witness be received by audio visual link external to the courtroom must, by its very nature, involve unfairness to an accused because it deprives him or her of a face-to-face confrontation with the witness”. On the other hand there would be unfairness to the prosecution, and the community it represents, if the witnesses were unable to give a proper account of themselves as a result of intimidation, fear and anxiety.

37. R v Hawi & Ors was a notorious trial arising out of an affray and murder which occurred when two rival motorcycle gangs came into confrontation at the Sydney domestic airport. The Commissioner of Police sought orders for pseudonyms to be provided to 149 witnesses described as “innocent bystander witnesses”. The identity of the witnesses was to be hidden from the accused. The application was that “the true names of bystander witnesses are not to be produced in evidence or otherwise disclosed in the course of these proceedings”. In R v Hawi and Ors(No 2) [2011] NSWSC 1648, RA Hulme J held at [15] that the legal basis of the application was not limited to s 130 Evidence Act 1995 (NSW) but “under the common law concerning public interest immunity”. His Honour made reference to the balancing exercise described by Spigelman CJ in John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344 at [17] – [23]. The Chief Justice pointed out that “two such [fundamental] principles are in conflict and a judgment must be made as to which principle is to prevail in the circumstances”. I am guided by the helpful analysis contained in the judgment of RA Hulme AJ in Hawi (No 2) because, although it was concerned with a different application, the factual background giving rise to the application had much in common with the present case.

38. The Commissioner’s application in Hawi (No 2) was based on the fact that the rival motorcycle clubs (the Comancheros and Hells Angels) were regarded by police to have been involved in acts of violence and intimidation including the use of weapons. There were examples in previous cases of witnesses “abruptly withdrawing their cooperation or failing to appear at court”. For present purposes it is unnecessary to go into the evidence given in that case, other than to note that “none of the witnesses were crucial” but that the body of evidence presented by the collection of civilian witnesses was crucial (see [108]). His Honour was not satisfied that there was any specific or known forensic disadvantage to the accused but accepted that there remained the possibility of some disadvantage which was not able to be identified. His Honour concluded that “the evidence presently available is insufficient to establish that the making of a pseudonym order is necessary to secure the administration of justice”. While there was a consistent theme in the material provided by the witnesses, 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 is served.” His Honour refused the application, concluding at [117] that:

“[T]he 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 scale favour.”

39. Later in the trial, the application was renewed in respect of twenty of the “innocent bystander witnesses”: R v Hawi & Ors (No 9) [2011] NSWSC 1655. His Honour analysed the evidence and finally concluded that the application for pseudonym orders should be granted in respect of 5 of those 20 witnesses. There was an “additional element” in respect of those five witnesses and they were “particularly vulnerable because of circumstances personal to them” ([33]). The reasons for those conclusions were not disclosed as they were based on material in the confidential affidavit of the Deputy Commissioner.

40. Hawi (No 9) demonstrates that it is necessary to consider the position of each of the individual witnesses rather than approaching the matter in a global way even though, in many respects, the evidence touching upon the application is common to each of the witnesses.

41. In R v Darwiche & Ors [2006] NSWSC 926, Bell J (as her Honour then was) made orders pursuant to s 5B of the AVL Act in relation to two witnesses (“W” and “X”). The order was made following a heated exchange in court between W and the accused. The exchange was precipitated when the accused yelled “bullshit” and then made remarks “predominantly in Arabic”. X was called to give evidence but refused to be sworn. He expressed a fear for his life and fainted after he left the courtroom. He struck his head and an ambulance had to be called. It was the fact of the actual incident in the courtroom and the “anxiety attack” (my expression) that led her Honour to make the order.

42. The other relevant matter arising from R v Darwiche and Others is the fact that the evidence in question was to be taken on the voir dire. As her Honour put it at [22]:

“There was no prejudice to the accused arising from the evidence being given by audio visual link at the voir dire. No question of assessing the credibility of the witnesses arose and there was no need to address considerations of any adverse inference being drawn by reason of the evidence being taken in this way.”

43. Her Honour felt that “the risk of an outburst, such as the earlier one, was greater at a hearing in the absence of the jury than may be the case at a trial, where there is an incentive to the accused to exercise self-control”. Her Honour noted that the order did not infringe the rights of the accused to “confront one’s accuser in open court”. Her Honour concluded at [25]:

“I considered that Mr W and Mr X each held fears about giving evidence in the presence of the accused. I was mindful that their evidence was being taken on a voir dire and that they would be required to give evidence again at the trial. I considered the interests of justice included ameliorating the strain imposed upon each of them in being required to give evidence in these proceedings on more than one occasion.”

44. Neither the learned Crown Prosecutor nor the Commissioner’s representative was able to point to any case where an AVL direction was made in the absence of any actual incident in the courtroom, clear evidence of potential for harm or where the witness had not indicated that they would not be prepared to give evidence unless via AVL or in circumstances where they were screened from the accused. In this regard, the caution expressed by Dunford J that the exercise of the power in criminal trials “must be carefully circumscribed” appears to have been followed.

the STATEMENTS of the witnesses

45. I will refer to the witnesses by the letters attributed to them in the statements. As I have said, ten of the twelve witnesses made statements indicating a preference as to the manner in which they give evidence.

46. Witnesses F and H did not provide statements. There is no direct evidence as to their preference and no direct evidence that they would have difficulties giving their evidence in the courtroom. The indirect evidence in the open affidavit of Assistant Commissioner Barrie is in the most general terms and does not refer to F and H specifically. The remaining witnesses, except for witness E, expressed a preference to give evidence by AVL. Witness E expressed a preference to give evidence behind a screen.

Criticisms of statements and witnesses

47. Senior Counsel for Mr Kalal was critical of the way in which the statements were obtained. He noted that all of the statements were obtained in a two week period between 25 September 2015 and 7 October 2015 and that there was common terminology between the statements. In written submissions it was asserted that “the statements appear orchestrated by police intervention” and that there was “an obvious conflict of interest” in the police because they might see “the court processes as mechanism of vindication for their arrests and charges laid against accused persons”. It was put that the witnesses should have been provided with the services of “some independent agency – such as the Prison Legal Service.” It was submitted that the application was “fostered and developed by police, whether of their own motion or at the direction of the Crown is a matter of speculation.”

48. I reject these submissions. There is nothing to support any impropriety on the part of the police or the prosecutor. The fact that the witnesses were approached by the police and informed of the AVL facility and other methods by which the evidence could be given is transparent and clear on the face of the statements. It seems that two of the witnesses chose not to provide statements. One expressed a different preference as to the manner by which he would give evidence. The witnesses expressed themselves in different ways and with varying degrees of reticence. None suggested that they would not give evidence if required to do so in the courtroom. Further, I can see no conflict in interest in the Commissioner bringing this application or in having his officers take statements from the witnesses relevant to this issue. The Commissioner has an interest, if not a duty, to protect these particular witnesses. He also has an interest in ensuring that ongoing and future investigations are not prejudiced by similar witnesses being discouraged to give statements.

49. On the other hand, counsel has pointed me to the fact that each of the witnesses was criminally involved in serious offences and, on their own accounts, have engaged in serious acts of violence. Evidence was adduced of a recorded conversation that showed three of the witnesses (I, G and L) discussing giving false evidence and obtaining substantial reductions in their sentences. The evidence also showed that witness H had posted parts of the statements of witnesses A and D on Instagram. These matters, as well as the well-known issues surrounding evidence given by informers, mean that the evidence should be treated with a degree of caution.

The individual statements

50. Witness A indicated a preference to give evidence by AVL and explained that he had been “exposed to numerous acts of violence at the hands of Farhad Qaumi and members who act on his behalf”. He acknowledged that he had taken part in some of those incidents himself. He expressed a concern that the accused “could bash me or kill me” and said that “I know that if I have to appear in court there will be police and sheriffs there to protect me that I would not feel safe being in the same room as them.” He went on to say that “unless you have been around the Qaumis and BFL you don’t understand how crazy they are” and that if they decided they wanted to “jump out and stab me they would”. He said that he would not feel comfortable that the police and sheriffs can keep an eye on all of the accused as well as members of the public who were described as “their friends, family and other gangsters there supporting them”. He expressed a concern based on things that he had heard that there was a contract out for him to be bashed or killed. He also expressed a concern of reprisals taking place outside of the courtroom.

51. Witness A was concerned that if all of the accused were staring at him he “might get too nervous or scared to say what I know about them.” And “if I have to give evidence in front of them I will do my best but I will be doing it with the back of my mind telling me the whole time watch out for Farhad, watch out for people in the public area, watch out for the other BFL, guys that do whatever Qaumi tells them to do.” He said he would be worried about who is going to follow him home and said he would find it very hard to give evidence like that.

52. Witness B described the accused Farhad Qaumi as unpredictable and spoke of incidents of violence and boasting about other incidents of violence. He is concerned that “Farhad and Witness M and the others will want to kill me or intimidate me into not giving evidence so that they can get off”. He said that if he had to give evidence in court he would be “petrified” and would be concerned that someone would follow him out of court. He said he has been diagnosed by a psychiatrist with "post-traumatic stress disorder, severe anxiety, depression, Bi-Polar and sleep disorders" as a result of his involvement in the Blacktown BFL and from making statements. He said: “I don’t know if I would be able to talk properly.” He said that he would be anxious and would feel less intimidated if he gave evidence by AVL. He said he wanted to give evidence without worrying about his safety and being intimidated.

53. Witness C was also frightened of the intimidation and anxiety that he suffers and would suffer if he gave evidence. He said that “I am most probably prepared to give evidence in court but I don’t think this would be the best way possible.” He said it would be “hard to concentrate sitting in front of all the accused.”

54. Witness D said he was “still wanting to give evidence in court but I am more than very worried about my safety.” He said if he gave evidence he will have anxiety, his blood will rise and he won’t be able to breathe. He said “I can’t think properly when I’m like that. I just think like people attacking me.” He was worried that the accused would hit him as he walked past the dock. Witness D was also worried about people from the Bankstown side of the BFL and noted that apart from Massoud (Zachariah), the Bankstown BFL members did not know him. If he was in court there was a risk that they would see more of him. He described troubles sleeping and said he had been given "anti-depression pills" by a doctor.

55. Witness E expressed a preference for giving evidence behind some form of screen where no one “especially members of the public will see his face” if that happened he could concentrate on the questions people were asking him. Witness E said: “if I was walking down the street I don’t think they would recognise me now and I want to keep it that way. I am very worried that if I have to give evidence in person in court they will know what I look like and be able to come after me”.

56. Witness G also spoke about the violence that he was aware that certain of the accused were capable of. He has been called a dog and a snitch and received messages that he should not give evidence or there would be consequences. He said “I am prepared to give evidence in court about the statements that I have made but I think when Farhad and the others see me give evidence and realise they are not getting out of gaol they will try to hurt or kill me”. He said he did not want to give evidence in court in front of Farhad Qaumi and the other BFL members. He said if he had to sit in court in front of Farhad and the others he would not be able to think clearly about his evidence. He would feel “much more comfortable and safer” if he was able to give evidence by AVL and this would enable him “to concentrate and give the best evidence I can”.

57. Like the rest of the witnesses who made statements, witness I described acts of violence and his fear of the accused and in particular Farhad Qaumi. He had been told by Qaumi “Australia’s too small don’t think I can hide”. He was aware of an incident involving one of the other witnesses when threats were made during his sentencing proceedings. He expressed fears for his safety based on family members of Farhad Qaumi having access to guns. He said he would much rather give evidence by AVL because he would feel safer and calm and “will have my head in the right place to give better evidence that way.” He also indicated if there was any attempt by the accused to escape from the dock and attack him he “wouldn’t want to risk it and come again”.

58. Witness J said that he has been diagnosed with “anxiety as a result of my time being involved with the BFL”. This has led to an autoimmune disease that makes his hair fall out. He said he grew up watching Farhad Qaumi hurt people. He holds a genuine belief that Farhad wants to kill him for making statements against him. He said “I am still willing to give evidence in court. If it comes down to having to actually attend court to give evidence I don’t know if I able to. I do get very nervous, very paranoid.” He also expressed a concerned that if he walked past the dock, the accused may attack him. For these reasons he expressed a preference to give evidence by AVL.

59. Witness K also expressed similar fears based on his knowledge of the violent acts of Farhad Qaumi. He said “I truly fear that if I am to sit before Farhad Qaumi and his brothers that my fears will significantly impact upon my ability to give accurate evidence. I honestly believe that the physical and psychological impacts of being face-to-face with Farhad Qaumi and his brothers may cause me to pass out.” He said that the fears that he holds about giving evidence are such that it makes him feel “physically sick”.

60. Witness L also said he would like to give evidence by AVL. He said:

“I don’t feel safe when I’m in court. The last time I was at court I was threatened both days. One day the brother of Antoun [the murder victim of count 30-31] said ‘I am going to kill you’ and on the other day a bikie in the gallery called Abuzar Sultani (I think he is in the Rebels) pointed his finger at me like a gun. Nothing happened to them when they did that.”

61. L expressed a concern that there would be insufficient security in the courtroom to protect him noting that Farhad “will have 8 other guys in the dock with him” he said “if they all jumped out of the dock to get me there is no way the sheriffs and the police could stop them all”. Witness L indicated that he would do his best if required to give evidence in court but that he would be thinking about his safety and would not be able to concentrate in the way that he would if he gave evidence via AVL.

62. Each of the witnesses, in various ways, described the extent of the violence to which they had been exposed while being involved with the accused and the Blacktown BFL. I have also considered the extensive material in the statements and interviews (Ex VD-B) which, if accepted, provides ample justification for the fears and trauma described by the witnesses. I note that while there are many inconsistencies in the detail of the evidence in the brief, the general thrust of the material with which I have been provided presents a generally consistent body of evidence establishing a culture of intimidation and violence.

THE OPEN AFFIDAVIT OF THE DEPUTY COMMISSIONER

63. Mr Barrie described in general terms the “regime of fear, intimidation and violence” and the influence (“absolute control”) that Fahad Qaumi exercised over other members of the Blacktown BFL. He drew a comparison between the structure of the group and “outlaw motor cycle gangs” and went on to give examples of such gangs accessing confidential information from government and police computers. I note that there is no evidence that the BFL have access to such information and no evidence of any attempt to obtain the personal information of any of the witnesses. However, I take into account the Deputy Commissioner’s stated concerns.

64. The affidavit detailed the criminal histories of the accused (although I rejected the evidence concerning Mr Bishop). He referred to an incident in court when Farhad Qaumi was on trial for murder and yelled aggressively to a witness who was giving evidence. He referred to intelligence suggesting that the accused (and in particular Mumtaz and Farhad Qaumi) had contraband mobile telephones while in custody and were able to contact people outside of gaol. He referred to a conversation between a senior investigator and Mumtaz Qaumi which could be taken to imply that there was some threat to witnesses – it is alleged that Mumtaz said that he planned to delay the trial by sacking his legal team and that witnesses “would become unavailable”. Senior Counsel for Mumtaz said that this conversation was denied and there is no evidence before me that the accused sacked his lawyers and, since I took over case management of the trial, there has been no attempt to delay the proceedings.

65. Mr Barrie referred to the considerable expense of the investigations and that if harm were to befall any of the witnesses the remaining witnesses would be unwilling to attend or assist further.

66. The affidavit of Mr Barrie noted that at paragraph 46: –

“The witnesses believe that they have not been seen by the accused persons for a number of years. Their appearances have changed, in some circumstances considerably so. Exposing the witnesses to the accused persons and/or to the public gallery increases the risk to their safety by enabling the accused persons, and/or their associates who might be in or around the court to better identify the current appearances of the witnesses.”

67. One of the difficulties I have with the evidence in that form is that it is unclear to me which of the witnesses’ appearances have changed and to what extent. One of the exhibits tendered by the accused shows that a photograph of witness L remains readily accessible on a media web-site. The events giving rise to the charges occurred in the middle of 2013 and the beginning of 2014. Accordingly, it would seem that the accused have seen the witnesses in the last 2 years. While I expect that their appearances have changed to a degree the evidence is insufficiently particular for me to make any meaningful assessment of the matter. Witness E said that he does not believe that the accused would recognise him and wants to keep it that way. The basis of his belief is not explained.

68. Mr Barrie says that the “physical attendance of the witnesses at Court is considered to be a high-risk activity” and would involve a “complex and significant protection operation by Corrective Services and police, both in terms of source and cost”. He also refers to the costs to the Sheriff’s office in deploying officers around the court complex. He says that “Police have concerns regarding the available level of security at the Court complex” and that “it may be that the NSW Sheriff’s Office resources will be stretched.”

69. I interpolate here that after the first day hearing of the Commissioner’s application, I received a telephone call from the NSW Sheriff in charge of court security. He had been approached by the police with a view to providing evidence on the matters referred in the last paragraph. He expressed a neutral view as to the application. I also note that at the commencement of the pre-trial hearing, I was approached by the Corrective Services Officer in charge of the security surrounding transporting the accused to and from Court and the custody arrangements while in the court complex. I was told that the dock can be cut off from the court by means of a large Perspex sliding window but I indicated my preference that this not occur unless the Corrective Services Staff considered it necessary. I was told that the Sheriff was taking legal advice and that the Department of Corrective Services and Sheriff’s office may bring or support the application. Neither has done so.

70. The most significant part of the open affidavit concerns the role of Crown witnesses and their importance to the administration of justice. The affidavit says that:

“If it became known that Crown ‘informer’ witnesses were not afforded sufficient protection by the authorities and/or the courts, the willingness of such persons to come forward and give evidence for the Crown would diminish or cease. This would significantly prejudice the administration of criminal justice and therefore be contrary to the public interest.”

71. I am extremely conscious of those considerations. I also fully expect that those charged with the responsibility of providing security for the Court and the witnesses, as well as those guarding the accused, will maintain the extremely high level of diligence that I have observed in the Police, Sheriff and Corrective Services Officers over many years. Those organisations can be justifiably proud of the fact that neither the Crown nor the Commissioner has produced any evidence to suggest that any incident has ever occurred that is capable of supporting a finding that the witnesses will be in actual physical danger coming into and out of the court room or while giving their evidence. I note that none of the witnesses will enter the court through the public areas and all will have an “escort” of some kind or another. None will come within the immediate physical presence of the accused. They will enter a door on the opposite side of a very large court room and give their evidence from a witness box just near that door.

CONSIDERATION

Audio Visual Link

72. I accept that the accused have the motive to do the witnesses harm and indeed to kill them. They are charged with offences which, if proved, could result in a total sentence of life without parole. Based on the untested material that I have read, they also have the propensity to commit extreme acts of violence including murder. In spite of its inadequacy in some respects, I find that the telephone intercepts of conversations involving Mumtaz Qaumi show a willingness to arrange for the murder of informer witnesses. I also accept that the accused have the means to contact people on the outside, some of whom probably have access to guns.

73. However, there is no direct (or indirect) evidence that the accused or their associates are aware of the current whereabouts of the witnesses or of any intelligence suggesting that these particular witnesses will be in danger if they attend court. Nor is there any evidence that the attendance of the witnesses at Court will give rise to such information becoming available. I am not satisfied that the attendance of the witnesses at Court will give rise to any actual physical danger to the witnesses.

74. I accept the genuineness of the fears expressed by the witnesses but find that some of their stated concerns (such as being attacked with knives in the courtroom or struck as they pass by the dock) are extremely unlikely to be realised given the security that exists in Court. In that regard, I note that Corrective Services have arranged for extra staff to be in the dock and the Court room to ensure the security of the Court and to minimise the risk of an incident. I also note that the Corrective Services staff have my permission to close the Perspex screen if there is any suggestion of trouble.

75. I accept that the witnesses have a preference to give evidence by AVL and that they are, in varying degrees, genuinely anxious about being confronted by the accused, and in particular it seems Farhad Qaumi. While I accept that they believe they would give a better account of themselves if they gave evidence by AVL (or behind a screen) whether that is actually the case is a matter of speculation.

76. I have taken into account the fact that the evidence at this stage is to be received in the absence of the jury and that issues of demeanour are not as important as they will be in the trial proper.

77. I have also considered the material in the closed affidavit of Deputy Commissioner Barrie.

78. Except in the case of four witnesses, I am not satisfied on the evidence before me that the Crown and the Commissioner have established that “it is in the interests of the administration of justice” to direct that the evidence be given by AVL. The exceptions are witnesses A, B, J and K and, at this stage, the exceptions apply only to evidence expected to be given on the “Basha inquiry” or voir dire.

72. In the case of witnesses A and K, I have concluded that it is in the interests of the administration of justice that each gives any evidence on the voir dire by way of audio visual link. The reasons for that conclusion arise from material in the closed affidavit of Mr Barrie and it is inappropriate that they be articulated further. The reasons would be obvious to the Commissioner and any appellate Court with access to the confidential material.

73. In the case of witnesses B and J, I consider that the evidence of their anxiety and the potential psychological impact of appearing in court is far more compelling than in the case of the other witnesses. B says he has been diagnosed with a variety of illnesses including Bi-Polar disorder and PTSD. J says that he has consulted a psychologist and psychiatrist and has been diagnosed with some form of anxiety disorder. This has manifested itself physically (his hair falls out). These assertions should have been supported by medical evidence but for the purpose of the evidence to be given on the voir dire I am prepared to act on the statements. Apart from the assertion made by one barrister that the whole body of evidence was “orchestrated” (a submission that I have rejected), there has been no factual challenge to the evidence. J has expressed a concern that he may faint if in the presence of Fahad Qaumi and is not sure if he will be able to give evidence in his presence. B said "I don't know if I would be able to even talk properly." For those reasons, I am satisfied that it is in the interests of the administration of justice that witnesses B and J give any evidence on the voir dire by way of audio visual link.

74. Accordingly, and at this stage only in respect of the pre-trial evidence, I will make a direction under s 5B of the AVL Act in respect of witnesses A, B, J and K.

75. Otherwise, and in respect of all of the other witnesses, I decline to make the orders sought in prayer 1 of the Crown's notice of motion and prayer 10 of the Commissioner's notice of motion.

76. I should indicate that if there is any incident in court or any attempt to intimidate the witnesses who are to give evidence in court, the question of witnesses appearing by AVL will be reconsidered and the Perspex screen in front of the dock may be closed for the duration of the trial. I should also indicate that if the issue is pressed with respect to the evidence to be given by witnesses A, B, J or K at the trial proper, clearer evidence and further submissions will be required. On the material presently before me, I am disinclined to make an AVL direction in relation to evidence to be given before the jury.

Screening or otherwise hiding the witnesses from the view of the accused

84. The Commissioner submitted that the Court room should be set up with screens so that the accused persons could not see the witnesses. This was said to be necessary (or desirable) in order to minimise the risk of the accused persons becoming aware of the contemporary appearance of the witnesses and thereby acquiring information that would enable them to instigate reprisals. In the open affidavit, Mr Barrie said that the witnesses “have not been seen by the accused persons for a number of years” and indicated that “their appearance have changed, in some circumstances considerably so.” One of the witnesses (E) expressed the opinion that the accused would not recognise him.

85. Because one of the accused is on bail and the evidence that the accused who are in custody are in contact with persons outside the gaol, the Commissioner submitted that if the accused see the witnesses in the courtroom, they will be able to pass on descriptions to those on the outside who might seek to do harm to the witnesses or attempt to influence them to change their evidence.

86. It is only around two years since the accused last saw the witnesses. They were, to varying degrees, well known to one another and spent a deal of time together. This is particularly so in relation to the ten witnesses who were part of the Blackton BFL. I accept the submissions made on behalf of the accused that it is very unlikely that the accused would not be able to recognise the witnesses and, in the absence of clear and specific evidence relating to the individual witnesses, I am unable to accept that the appearance of the witnesses will have changed significantly in such a relatively short space of time. I also find it difficult to accept that seeing the witnesses now will assist in arranging for persons outside of prison to visit harm, or attempt to influence, the witnesses. Mr Hill (for the Commissioner) conceded that knowing what a witness looks like is not likely to assist in determining their whereabouts. Counsel for Mr Zarshoy put into evidence an article currently available on the internet (although subject to a pending application for a "take down" order by one of the other accused), which depicts the appearance of witness L.

87. Balancing the relevant considerations, including the safety of the witnesses and the public interest in encouraging future witnesses to come forward, I am unable to see any significant utility in screening the accused. If such a procedure were adopted in the presence of a jury, it would be difficult if not impossible to cure the inevitable prejudice by direction. In the absence of much clearer evidence, I would be most disinclined to make such an order in the course of a jury trial. That being so, there is little if any utility in making a screening order during the pre-trial evidence.

88. I decline to make the order in prayer 11 of the Commissioner's notice of motion.

Suppression and Non-publication orders

89. As I have indicated, I accept that there should be suppression orders to protect the safety of the witnesses, to maintain the integrity of the process and to encourage other witnesses in future cases to come forward in the knowledge that their identity will be protected. Accordingly, I will make orders in accordance with prayer 5-9 of the Commissioner’s notice of motion.

90. I will also continue the non-publication order concerning the evidence and submissions made on the voir dire. This order is necessary to protect the integrity of the process, noting that it is anticipated that (subject to any application for an order for a trial by judge alone) the trial will proceed by jury commencing in late February 2015.

Closing the Court

91. Prayer 13 of the Commissioner's affidavit seeks that the court be closed for the duration of the evidence given by each of the witnesses. In considering this application, I start from the proposition that it is a fundamental part of our system of justice that the courts are open to the public other than in exceptional circumstances: see, for example John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344.

92. An order that particular evidence be heard in closed court must only be made if it is considered to be necessary in the public interest.

93. There are three bases upon which it might be considered necessary to close the court during the witnesses' evidence. First, if the court is open, associates of the accused who do not otherwise know the appearance of the witnesses might be in a position to see them and, subsequently, identify them if an attempt is made to seek reprisal or to influence them. Secondly, people associated with the victims may also seek reprisal because the witnesses were involved in the commission of the subject crimes. In this regard, particular concern has been expressed by one or more of the witnesses that members of the Bankstown BFL (the victims of counts 11-19) might be in a position to identify the witnesses. Thirdly, one of the witnesses (L) was subject to intimidation from the public gallery during the course of his sentencing hearing. As the sentencing Judge of L, l am aware of the incident of which he complains: R v NK (No 3) [2015] NSWSC 1257 at [109].

94. Again, the Commissioner relies on the administration of justice both in relation to this particular case and in the broader sense discussed in Fairfax Digital v Ibrahim. In other words, failing to protect the witnesses in this case may discourage witness in future cases (or current ongoing investigations) from coming forward.

95. In addressing the test of necessity, a difficulty in the present case is that the body of evidence comprised by the 12 informant witnesses makes up a substantial part of the narrative. If the Court is closed during their evidence, it will be difficult for the public to be made aware of the nature of the offences allegedly committed by the accused (and by the witnesses) or to understand the nature of the case that the Crown seeks to make against them. It may be that media organisations may seek to be heard in relation to the order generally or to argue that certain accredited journalists be excepted from the order.

96. I am satisfied at the pre-trial stage of the proceedings, where there is a non-publication order in existence in any event, that it is necessary and appropriate to close the court during the witnesses' evidence. However, I will seek further submissions if there is any application for the order to remain in existence during the trial proper. I will also ask that relevant media organisations be notified of any such application to provide them with an opportunity to be heard. At least two of the major media organisations are appearing on 19 November 2015 and I propose that they be advised of the content of this order.

97. I will make the order sought in prayer 13 of the Commissioner's notice of motion but only for the purpose of the pre-trial hearing.

The names of the witnesses

98. As I have said the idea that the trial might proceed without the accused knowing the identities of the witnesses was abandoned. However, prayer 4 ofthe Commissioner's notice of motion seeks orders that would result in them being referred to by what the Commissioner submitted were "the names by which they were known to the accused at the time of the alleged offences.”

99. I do not understand these orders to be opposed and for the same reasons that I will close the court and make suppression orders and on the basis of thematerial in the affidavits of Mr Barrie, I will make the orders sought in prayer 4.

ORDERS

100. For those reasons, I make the following orders:

1. Each of the persons known as witnesses 'A', 'B', 'J' and 'K' be permitted to give their evidence at the pre-trial hearing by audio visual link pursuant to the provisions of s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).

2. Otherwise, the applications for directions under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) are refused.

3. For the purposes of these proceedings, including any other or further interlocutory applications conducted in connection with these proceedings, the proposed Crown witnesses who have given statements under the identifying pseudonym letters "A" to "L" inclusive (collectively "the witnesses"), shall each be referred to by the name recorded hereunder beside each said pseudonym letter ("collectively the witnesses' names"):

1. Witness A

2. Witness B

3. Witness C

4. Witness D

5. Witness E

6. Witness F

7. Witness G

8. Witness H - Michael Odisho

9. Witness I

10. Witness J

11. Witness K

12. Witness L

4. The interim suppression and non-publication orders made on 2 November 2015 are revoked and the following orders are made.

5. Except for the purposes of issuing subpoenas, the names of the witnesses referred to in Order (3) be suppressed until further order of the Court pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”), together with any evidence, submission, discussion, document or information that might facilitate the identification of the witnesses names, on the following grounds:

1. the order is necessary to prevent prejudice to the proper administration of justice;

2. the order is necessary to protect the safety of the witnesses;

3. the order is necessary in the public interest.

6. Except for the purposes of issuing subpoenas, publication of the witnesses' names be restricted until further order of the Court, pursuant to s 7 of the Act, to the respective pseudonym letters allocated to each witness in Order 3 (a) to (I) above, on the grounds set out in Order 5 (i) to (iii) above.

7. Without limiting the generality of Orders 5 and 6 above, any description or depiction of the physical appearance or other identifying feature of any or all of the witnesses be suppressed until further order of the Court, pursuant to s 7 of the Act, except as might be necessary for the proper conduct of the proceedings, on the grounds set out in Order 5 (i) to (iii) above.

8. Pursuant to s 7 of the Act, and until further order, there is to be no publication of the evidence, information given about the evidence or submissions made in the pre-trial hearing on the ground that the order is necessary to prevent prejudice to the proper administration of justice.

9. Orders 5, 6, 7 and 8 above are to apply throughout the Commonwealth of Australia, pursuant to s 11 (2) of the Act.

10. The Court is to be closed for the duration of the evidence given by each of the witnesses referred to in Order (3) in the pre-trial proceedings, such closure of the Court being subject to the following persons being permitted to be present in the Court while those witnesses give evidence:

1. The legal representatives of the accused persons;

2. The legal representatives of the Director of Public Prosecutions;

3. Legal representatives for the Commissioner of Police;

4. Staff of the Department of Corrective Services and Sheriff’s Office;

5. Court staff; and

6. Officers of the NSW Police Force involved in arrangements for the protection of the witnesses.

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Endnote

Decision last updated: 23 November 2016