R v Qaumi and Qaumi (No 8) - [2016] NSWSC 1730

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Qaumi (No 8) [2016] NSWSC 1730
Hearing dates: 1 December 2016
Date of orders: 08 December 2016
Decision date: 08 December 2016
Before: Hamill J
Decision:
The orders [(1) to (7)] made on 11 November are varied by making the following additional orders:
(8) With the exception of publications on legal web-sites and legal reports, there is to be no publication of information connecting Witness M to the following people, names or identities:
(a)   Bruce Crowe
(b)   Naida Barakat
(c)   Chooch
(d)   Jim Baraket
(e)   Barakat
(f)   Alina Shadrina
(g)   Omar El Cheik

(9) For the purpose of ss 11 and 12 of the Court Suppression and Non-publication Orders Act 2010 (NSW), order (8) is to have effect until further order and throughout the Commonwealth, and is made on the grounds set out at s 8(a), (c) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW).

(10)   With the exception of publications on legal web-sites and legal reports, or publications made on or before 1 December 2016, there is to be no further publication of the gender of witness M.

(11) For the purpose of s 12 of the Court Suppression and Non-publication Orders Act 2010 (NSW), order 10 will operate for a period of twelve months and will expire on 7 December 2017.

(12) For the purpose of s 11 of the Court Suppression and Non-publication Orders Act 2010 (NSW), order (10) is to have effect throughout the Commonwealth and is made on the grounds set out at s 8(a), (c) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW).
(13)   For the avoidance of doubt, Order (10) does not require any publication made on or before 1 December 2016 to be removed or taken down from the internet.
Catchwords: CRIMINAL LAW – non-publication and suppression orders – where informant witness complains that she was identified in the press – order sought preventing publication of names of people associated with her – order sought preventing publication of her gender – where extensive publication before application –sensational reporting – prurient – whether orders necessary – whether orders futile – where another person named in the trial assassinated during the currency of the trial – assessment of risk to witness – encouraging future witnesses to co-operate – whether order necessary during the currency of extensive media coverage of the case – assessment of appropriate length of order – “no longer than reasonably necessary”
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW)
Cases Cited: Cain v Glass (No 2) (1985) 3 NSWLR 230
DPP v Smith (1986) 86 A Crim R 2308
Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21
John Fairfax v Police Tribunal (1986) 5 NSWLR 565
Fairfax Digital v Ibrahim [2012] NSWCCA 125
Nationwide New Pty Limited v Qaumi [2016] NSWCCA 97
R v Qaumi & Ors (No 9) (Court Closure) [2016] NSW SC…

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: [2016] NSWSC 1730
Decision Date: 08 December 2016

CaseChat Overview and Summary

The case of R v Qaumi and Qaumi (No 8) involved the applicants seeking non-publication and suppression orders to prevent the publication of certain details associated with the case. The applicants were facing criminal charges, and one of them was an informant witness who had complained that she was identified in the press. The court was tasked with deciding whether the orders were necessary and appropriate, given the circumstances of the case.

The central legal issues before the court were whether the orders were necessary to protect the informant witness, whether they were futile given the extent of prior publication, and whether the orders were necessary during the currency of extensive media coverage. Additionally, the court had to consider the impact of sensational and prurient reporting on the witness and the public interest in the case. The court also had to determine the appropriate length of the order, balancing the need for protection with the principle that orders should not be in place for longer than reasonably necessary.

The court found that the orders were necessary to protect the informant witness, considering the risks associated with her identification and the impact of sensational reporting. The court recognised the importance of encouraging future witnesses to cooperate by providing them with adequate protection. The court also considered the ongoing media coverage of the case and the need for the orders during this period. In assessing the appropriate length of the order, the court balanced the need for protection against the principle that orders should not be in place for longer than reasonably necessary.

The final orders included non-publication and suppression orders to protect the informant witness and prevent the publication of certain details associated with the case. The court determined that these orders were necessary to protect the witness and balance the public interest in the case with the need for protection. The court also set the duration of the orders, considering the ongoing media coverage and the need for protection during this period.

Orders