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 171
R v Qaumi & Ors (No 13) [2016] NSW SC 337
R v Qaumi & Ors (No 15) (Non-publication order) [2016] NSWSC 318
R v Qaumi & Ors (No 16) (Internet “take-down” orders) [2016] NSWSC 319
R v Qaumi & Ors (No 67) [2016] NSWSC 1601

Category:

Procedural and other rulings

Parties:

Regina
Farhad Qaumi
Mumtaz Qaumi
Witness M
Commissioner NSW Police Force (Applicant)
Nationwide News Pty Ltd (Intervenors)

Representation:

Counsel:
K McKay (Crown)
J Stratton SC & M Curry (F Qaumi)
P Young SC (M Quami)
R Bhalla with/R McIlwaine (for Commissioner of Police)
D Sibtain (Nationwide News Pty Ltd) (Intervenors)

  Solicitors:
Solicitor for the NSW DPP(Crown)
Archbold Legal (F Qaumi)
George Sten & Co (M Quami)
NSW Crown Solicitors Office (for Commissioner of Police)
In-house counsel for media organisations (Intervenors)

File Number(s):

Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260

Publication restriction:

Not for publication.

Judgment

1. On the third day of giving evidence in the current trial, Witness M asked to say something before resuming her evidence. Initially, I said that she could not do so but the parties agreed that I should ask her what the problem was, and the Crown Prosecutor indicated that he believed it may have something to do with the extensive press coverage that her testimony had attracted. When I made inquiry of her, Witness M said that she did not want to continue to give evidence because she had been identified in the media. [1] This was contrary to suppression orders that were made to protect her safety, the safety of other witnesses and to protect the integrity of future investigations: see, inter alia, R v Qaumi & Ors (No 9)(Court Closure) [2016] NSW SC 171; R v Qaumi & Ors (No 13) [2016] NSW SC 337 and R v Qaumi & Ors (No 67) [2016] NSWSC 1601.

   1. T 526-527.

2. Witness M explained that members of her family had advised her that her voice had been published by one of the media outlets covering the case. Certain steps were taken and I made an order that the particular publication be removed from the Internet. I was satisfied that the identification of Witness M’s voice was inadvertent and an attempt had been made to “digitise” her voice. There was no opposition to the “takedown” order by the media outlet involved and I understand the item was removed from the newspaper’s website within a few minutes of my making the order.

3. However, Witness M’s complaint went further. She said that publication of the fact that she is a woman necessarily identified her to a particular sub-section of the community. As I understood it, Witness M’s point was that people with any knowledge of the events out of which the various shooting offences arise would readily identify her because she is the only woman with connections to various people and groups involved in the case and who have been referred to in the evidence.

4. Nationwide News did not oppose the making of an interim order under s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“Court Suppression Act”) on the basis that that section allows for such orders without consideration of the merit of the case. Accordingly, I made interim orders in the following terms:

“The Court makes the following interim orders pursuant to s 10 of the Court Suppression Order and Non-publication Orders Act 2010:

No further publication of evidence given by Witness M.

There be no further publication of the gender of Witness M.

That order will remain in force until Witness M is excused from giving evidence in the current trial but will continue after that time if an application is made in the mean time for further non-publication orders in relation to Witness M.

Pursuant to s 11 of the Court Suppression Order and Non-Publication Orders Act 2010 the orders will be in force throughout the Commonwealth of Australia.

I note that these orders do not constitute what is often are referred to as take-down orders and what has taken place does not need to be removed.

No publication of the contents of VD2, which is a letter from the Crime Commission including any part of that letter referred to or read in the course of legal arguments in court today.

The order that there be no further publication of any of the audio evidence is revoked.”

5. When Witness M’s evidence came to an end, I did not excuse her to ensure that the non-publication order did not expire in accordance with the terms in which it was made (in particular order 3).

6. Subsequently, the Commissioner of Police made an application for non-publication orders calculated to ensure that Witness M was not identified in any future publication and to strengthen or give effect to the earlier orders suppressing publication of her identity or material that may identify her. The Commissioner moved on a notice of motion seeking orders in the following terms:

(3) That there be no publication of the following names:

Bruce Crowe

Naida Barakat

Chooch

Jim Baraket

Barakat

(4) Order (3) is to have effect until further order and throughout the Commonwealth, and is made upon the grounds set out at s 8(a), (c) and (e) of the Court Suppression and Non-publication Orders Act 2010.

(5) That the orders made on 7 March 2016 be varied as follows:

a. At the end of Order 4, there will be a new order 4A and then the words;

“Without limiting the generality of Orders 2, 3 and 4 above, the gender of Witness M, and any information that is capable of identifying the gender of Witness M, 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 2 (i) and (iii) above.”

7. The application was listed for hearing on 1 December 2016. Witness M represented herself and asked that order (3) in the Commissioner’s notice of motion be varied to add the names Alina Shadrina and Omar El Cheik.

8. Senior Counsel for each of the accused did not seek to be heard. The learned Crown Prosecutor supported the application but did not seek to add to the evidence or submissions made on the behalf of the Commissioner of Police.

9. The Commissioner read an open affidavit of Anthony Crandell and a confidential affidavit of the same senior police officer. Counsel for Nationwide News was permitted (by consent) to read the confidential affidavit on his undertaking not to disclose its contents to his client or otherwise. Nationwide News tendered a bundle of press clippings and Internet materials (Ex VD 3) to demonstrate the extent of material and information about the case and Witness M that had already been published.

10. Counsel for Nationwide News Pty Ltd did not oppose the making of order (3), including the additional names nominated by Witness M. However, he indicated that he did not “think it is my position to consent or object or otherwise” and that it was a matter for the Court. [2] Counsel for the Commissioner submitted that such orders were necessary, and in accordance with the terms of ss 6 and 8 of the Court Suppression Act, because the relationships between Witness M and the people identified in order (3) were such that the identity of those people would necessarily identify Witness M to people who might seek to do her harm. I accept the Commissioner’s submission and also note that if such orders are necessary in respect of the identity or names in order (3) as originally drafted, the same reasoning would apply to the two additional names identified by Witness M. However, the breadth of the order as drafted is such that I do not accept that an order in those terms is necessary. What must be prevented is publication of the connection or relationship between Witness M and those people. It is not necessary to order a blanket prohibition of the publication of those names. On its face, the order as drafted would prevent publication of the names in any context, including a context completely unrelated to the present proceedings.

    2. T 879.

11. I am satisfied that it is necessary to make orders preventing the publication of the connection and relationship between Witness M and those seven people and will fashion orders accordingly.

12. The media opposed the order in prayer (5) of the notice of motion. It was submitted that such an order was not necessary for a number of reasons. It was submitted that there was no evidence proving a causal link between threats that have been made to Witness M or any danger that she is in and the identification of her gender in the media. It was also submitted that the extent of media publicity to date and the futility of attempting to require that previous publications be removed from the Internet and other sources, meant that there was no utility in making an order suppressing the identity of Witness M’s gender.

13. It is unnecessary to repeat the analysis of the legal principles that apply to an application such as the present. Given the requirement for the application to be determined as a matter of urgency and the fact that the Crown case in the current Judge alone trial is reaching its conclusion and must be finished by Friday 9 December 2016, time pressures do not allow me to set out once again the detail of the various authorities that must guide my decision making. The authorities and principles were analysed in detail in earlier judgments: see R v Qaumi & Ors (No 15) (Non-publication order) [2016] NSWSC 318 and R v Qaumi & Ors (No 16) (Internet “take-down” orders) [2016] NSWSC 319. Those decisions and that analysis were subject to review in Nationwide News Pty Limited v Qaumi [2016] NSWCCA 97 where the non-publication orders were upheld but the order requiring various articles to be removed from the Internet was set aside.

14. The key principles in play in the present application are three-fold.

15. First, I must give effect to s 6 of the Court Suppression Act 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”. The critical nature of the open justice principle in the administration of justice in a free and democratic society is entrenched in the common law – as well as in the Court Suppression Act – by the imposition of a test of necessity: see s 8 of the Court Suppression Act and John Fairfax v Police Tribunal (1986) 5 NSWLR 565 at 476–477. The test of necessity is not met merely because an order seems to be “convenient, reasonable or sensible”: Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [31]. It is not appropriate to engage in a balancing exercise. Rather, the question is whether the order is necessary.

16. Second, it is established that “an order will fail the test of necessity if it is futile”: Fairfax Digital v Ibrahim [2012] NSWCCA 125 at [76] (Basten JA). This was the basis upon which the “take down” orders were set aside in Nationwide News Pty Limited v Qaumi: see [83]–[85], [89]–[91]. This is an important issue in the present case because of the extensive and intense publication of material over the last two weeks. There is some force in the submission that restricting publication of Witness M’s gender at this stage would be an exercise in futility because of the publication that has preceded it.

17. The third principle requires the Court to protect the identity of a confidential source or police informant. This category of confidential information, sometimes referred to as “the informer rule”, has been described as the most powerful category of public interest immunity: cfCain v Glass (No 2) (1985) 3 NSWLR 230 at 247–248 and DPP v Smith (1986) 86 A Crim R 2308 at 311–312. The Court’s role in protecting the identity of police informants serves at least two important purposes. First, it protects the safety of those who have provided information to the police or given evidence against accused persons. Secondly, it encourages future witnesses to assist law enforcement authorities in the investigation of criminal activity, particularly when the targets of the investigation are involved in underworld or gangland activity.

18. I accept that most people in the community who might be inclined to visit harm upon Witness M probably know her identity without reference to any media publications. I further accept that there is a public interest in the case and a public interest in full and fair reporting of the case. I accept that if an order is to be made, it must have some utility and making an order that would be futile is not considered to be necessary either at the common law or in the terms of the Court Suppression Act.

19. However, the Court has a duty to do what it can to protect the safety of the witnesses. The present case, and the events and circumstances surrounding it, could not provide a more stark example of the dangerousness of people involved with, and connected to, the accused and the victims of the shootings with which this trial and the earlier jury trial are concerned. Again, I stress that many of the people so involved, and who may have an incentive to do harm to Witness M, already know her identity. Part of Exhibit VD 3 describes the assassination of a man called Pasquale Barbaro. The report in the newspaper suggests that Mr Barbaro was a “crime commission informant”. [3] There was no evidence to that effect in the current trial, but the simple fact is that Mr Barbaro’s name was mentioned in this trial as somebody who had spoken to the police (seemingly as a suspect or somebody with connections to those suspected of involvement in the Antoun murder) and several hours later he was gunned down in a suburban street.

    3. See, for example,

20. The open affidavit of Mr Crandell indicates that evidence of the specific threats to Witness M would be provided in the confidential affidavit. Plainly, I cannot set out in this judgment the details of those threats but I can say that they relate to matters that arose before there was any publication of her identity or gender. Clearly, the threats emanate from people who know Witness M’s identity. There is no causal connection between those threats and publication of her gender.

21. For the most part, people with a motive to harm or to kill Witness M are people who know already know her identity. That includes those with associations to the victims of the various offences with which she has admitted (or is alleged) to be involved. It also includes those against whom she has given evidence.

22. However, I do not accept that everybody who might seek to do her harm will have identified her at this point. The question whether further identification of her gender makes it more likely that any person who may seek to do her harm would more readily be able to identify her is difficult to know. I accept that Witness M has expressed that concern (both to the Court and to police) and I accept that her concern is genuine. The fact that the evidence at this point is incapable of establishing that connection to any degree of certainty, and that the threats of which I am aware seem to have emanated from those who know who Witness M is, does not gainsay the fact that the more information about her that is published, the more likely it is that she will be identified by others.

23. In determining what is necessary in any given case involves an identification of the extent of the risk by reference to any causal connection between the nature of the material to be published and the possible threat to the witness. The potential consequences, which are extreme in the present case, must also be taken into account if there is any possibility that a causal connection exists between the material sought to be suppressed and the fears expressed by the witness and the possibility that harm will be visited on her. I take into account the extreme violence that has been involved both in this case and in a number of high-profile incidents that have occurred during the currency of the present trial and before it commenced.

24. It is also necessary to consider the impact upon future investigations of failing to make orders necessary for Witness M’s protection. Future witnesses may resist assisting police if it were known that Witness M stood up in Court and sought the protection of the Court but her plea fell on deaf ears. Police investigators seeking the co-operation of informant witnesses often make promises that the identity of the witness will be protected. In particular, witnesses are frequently promised that their identities will be kept secret from those who would wish them ill. Such informants would quickly retreat from assisting the authorities if it became known that judicial officers and the police involved in attempting to protect them failed to do that which lawfully could be done to protect them from harm.

25. I have also considered the fact that there are other women with some involvement in the case. For example, the partner of Witness L has been mentioned in evidence and there have been some other female witnesses. However, Witness M is the only woman with a close connection to both chapters of the Brothers for Life organisation and to other people referred to in the evidence. She is the only informant witness who is female.

7. Having considered all relevant matters, I am not satisfied that making a long term or indeterminate order prohibiting the publication of Witness M’s gender is necessary. This conclusion is largely based on the fact that the nature of the publicity that is already in circulation clearly identifies her gender and it would be futile to attempt to have that material removed from the Internet.

8. However, while the present proceedings are extant and while the reporting remains both extensive, sensational and (with respect) prurient, I have concluded that it is necessary to make an order for a defined period prohibiting publication of her gender. Such an order will mean that publication of her gender will not occur during the more general reporting of the present proceedings but will not prevent such publication in the future. An order for a defined period will have minimal impact on the public interest in open justice.4 The limited impact of an order for non-publication of Witness M’s gender was demonstrated by the coverage of the case in last week’s Sunday Telegraph, which spanned over seven pages of the newspaper. [4] Such an order is in the public interest because it may encourage other potential informant witnesses to co-operate with the police or, perhaps more correctly, not discourage or dissuade them from doing so.

   4. Yoni Bashan, “Warlord, from Afghan Refugee to Supervillain”, Sunday Telegraph (Sydney) 4 December 2016.

9. I am satisfied the order is necessary to prevent prejudice to the proper administration of justice: s 8(1)(a) of the Court Suppression Act. In particular, I am satisfied that a failure of the Court to do what it can to protect Witness M and to strengthen the existing suppression order may discourage other informant witnesses from co-operating with law enforcement authorities. I am also satisfied that the order is necessary to protect the safety of Witness M: s 8(1)(c) of the Court Suppression Act. This is because during the current period of media frenzy, other inmates may work out, by reference to her gender and connection to the case, that she is Witness M. It is notorious that informant witnesses are in danger when in gaol, notwithstanding the steps taken by correctional authorities to protect them. Finally, I am satisfied that an order for a defined period is necessary in the public interest in that it will encourage other witnesses to co-operate with police and that this public interest significantly outweighs the public interest in open justice, particularly where the interference with reporting of the case is circumscribed by a defined period in which the order will operate: s 8(1)(e) of the Court Suppression Act.

10. I am satisfied for the purpose of s 12 of the Court Suppression Act that the order should remain in force for a period of twelve months. While that may seem to be an arbitrary determination, it is a period that will cover the current period of extensive media reporting. Witness M will be further protected by a prohibition on the publication of her gender. I am of the opinion that so confined the non-publication order will operate for a period that is “no longer than is reasonably necessary to achieve the purpose for which [the order] is made”: s 12(2) of the Court Suppression Act.

11. There will be two exemptions to the order.

12. First, the order will not operate to require those media outlets that have already published Witness M’s gender to remove such articles from the Internet. I accept that such an order would be futile given the extent of publicity and the variety of publishers and web-sites on which the material has been published. Counsel seemed to agree that a non-publication order, without a specific “carve out” for previously published articles, would have the effect of a take-down order because of the definition of publish in the Court Suppression Act. [5]

    5. See T 888 and s 3 of the Court Suppression Act.

13. Secondly, the order will not prevent publication of this and other judgments on Caselaw NSW or other legal web-sites and legal publications. It is not necessary to prevent publication on legal web-sites or in law reports because that is not a source from which people who may desire to do harm to an informant witness are likely to obtain their information. What is necessary is to distance or disconnect the publication of Witness M’s gender from the current spate of media reports for the reasons identified earlier in this judgment.

14. For those reasons, orders (1) to (7) made on 11 November 2016 in R v Qaumi & Ors (No 67) are varied by making the following additional orders:

1. 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:

1. Bruce Crowe

2. Naida Barakat

3. Chooch

4. Jim Baraket

5. Barakat

6. Alina Shadrina

7. Omar El Cheik

2. For the purpose of ss 11 and 12 of the Court Suppression and Non-publication Orders Act2010 (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).

3. 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.

4. For the purpose of s 12 of the Court Suppression and Non-publication Orders Act2010 (NSW), order 10 will operate for a period of twelve months and will expire on 7 December 2017.

5. For the purpose of s 11 of the Court Suppression and Non-publication Orders Act2010 (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.

6. 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.

**********

Endnotes

Decision last updated: 16 December 2016