R v Qaumi (No 10)

[2016] NSWSC 184

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 10) [2016] NSWSC 184
Hearing dates:	14 March 2016
Date of orders:	14 March 2016
Decision date:	14 March 2016
Before:	Hamill J
Decision:	Non-publication and pseudonym orders made
Catchwords:	CRIMINAL LAW – pre-trial publicity – orders to protect accused from jury panel searching for information about accused before empanelment
Legislation Cited:	Criminal Procedure Act 1986 (NSW)
Cases Cited:	R v McNeil [2015] NSWSC 357
Category:	Procedural and other rulings
Parties:	Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Mohammed Zarshoy Mohammed Kalal
Representation:	Counsel: K McKay & P Hogan (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami) N Carroll(J Quami) R Driels (Zarshoy) L McSpedden (Kalal)   Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten& Co (M Quami) Bannisters Lawyers (J Quami) Zahr Lawyers (Zarshoy) Hallak Law (Kalal)
File Number(s):	Farhad Quami - 2014/6809, 2014/315201, 2014/315252; Mumtaz Quami – 2014/6813, 2014/315251, 2014/315260; Jamil Quami - 2013/336086, 2014/18164, 2014315253; Mohammad Zarshoy – 2014/316236; Mohammad Kalal - 2013/344739, 2014/66939

ex tempore Judgment

1. I have listened today to submissions in relation to an application by the five accused for an order under section 132A of the Criminal Procedure Act 1986 (NSW). That is, for an order that they be tried by a judge rather than a jury. That application is opposed by the Director of Public Prosecutions and it will be necessary for me to resolve the issue at some stage between now and 4 April, when the matter was listed for trial, whether it be by judge or by jury.

2. One of the cases that has been subject to discussion today is the decision of his Honour Johnson J in R v McNeil [2015] NSWSC 357 in which his Honour dealt with a not altogether dissimilar application. That is, an application for a Judge-alone trial based upon, amongst other things, pre-trial publicity. The present case has a number of additional factors which are urged upon me as going into the mix created by s 132(4), those factors falling on either on either side of the argument. One of the things that his Honour felt it prudent to do in that case was to make orders to ensure that any pre-trial publicity that there had been would not be accessed by the potential jury pool once they became aware of the fact that they were coming to Court. At that point they would not be necessarily aware of any prohibition on accessing material on the internet. In other words, they may start conducting their own inquiries as to the accused if they read their names in the court list or elsewhere.

3. In McNeil Johnson J made a number of non-publication orders calculated to ensure that there was no way that a potential juror who received a summons would start making inquiries in relation to the accused. I propose to adopt the same form of order that his Honour adopted in that case The orders can be seen at [111], and basis upon which the orders were made is explained at [82]-[84].

4. The orders that I make are these:

1. That there be no publication of the listing of the accused's trial.

2. That there be no publication of the name of the accused. They should be referred to in any listing or other item or publication as, respectively, AA, BB, CC, DD and EE.

3. Orders 1 and 2 are to remain in force until the conclusion of the first day of the trial or until further order.

4. I order that there be no publication of this judgment or the evidence and submissions that have been given and made today in the course of the application for a trial by judge alone.

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Decision last updated: 02 February 2017