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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 1711
Decision Date: 18 November 2015

CaseChat Overview and Summary

The case before the court involved an application by the prosecution for informant witnesses to testify via audio-visual link (AVL) in the trial of the respondents, who were charged with various offences including murder, conspiracy to commit murder, and accessory after the fact to murder. The respondents challenged the use of AVL, arguing that the witnesses should testify in person, asserting their right to confront the accusers. The Supreme Court of Victoria heard the matter, led by Justice Byrne.

The court needed to determine whether the use of AVL for the witnesses was appropriate, considering the risk to their safety, the motive of the respondents to harm them, and the potential prejudice to the respondents' right to a fair trial. The court also considered whether the evidence provided by the witnesses was orchestrated, whether the police had a conflict of interest, and the overall public interest in protecting informant witnesses.

Justice Byrne held that the application for AVL was appropriate, given the substantial risk to the witnesses' safety, their expressed fears and anxiety, and the respondents' motive to harm them. The court emphasised that each case must be assessed on its individual circumstances, and the onus was on the party seeking the AVL order to demonstrate the necessity. The judge concluded that the court's security measures were sufficient to protect the witnesses and that the administration of justice would be prejudiced if the witnesses were compelled to testify in person. The court also noted that the protection of informant witnesses served the public interest and encouraged others to assist police in the future.

The court granted the application for the witnesses to give evidence via AVL and made suppression and non-publication orders to protect the witnesses' identities. The court also ordered that the trial be closed to the public to further safeguard the witnesses.

Orders