R v Qaumi (No 12) - [2016] NSWSC 294

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 12) [2016] NSWSC 294
Hearing dates: 16 March 2016
Date of orders: 21 March 2016
Decision date: 21 March 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
1. Publication of the name of Mohammed Hamzy and any other name or nickname by which is referred is prohibited pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW).

2. There is to be no publication of any evidence or submission tending to reveal the identity of Mohammed Hamzy including any physical description, photographs, alleged position in the group known as Brothers for Life, Bankstown, relationship to Mahmoud Hamzy, the address of 142 Greenacre Road, Greenacre, or the charges for which he awaits trial in the Supreme Court.

3. For the purpose of s 8 (2) I indicate that the orders are made on the grounds that (a) they are necessary to prevent prejudice to the proper administration of justice and (e) it is otherwise necessary in the public interest for the orders to be made and that public interest significantly outweighs the public interest in open justice.

4. For the purpose of s 11, the orders are to apply throughout the Commonwealth of Australia.
5. For the purpose of s 12, the orders are to remain in force until the conclusion of the Supreme Court trial of Mohammed Hamzy or until further order, whichever is the earlier.
Catchwords: CRIMINAL LAW – suppression and non-publication orders – interests of justice – fair trial – prejudicial publicity – public interest in open justice – right of accused to receive a fair trial - prevent prejudice to the proper administration of justice – adverse media coverage during trial of other accused
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW)
Cases Cited: R v Hamzy [2015] NSWSC 1428
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; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260Jamil Quami - 2013/336086; 2014/18164; 2014315253Mohammad Zarshoy – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939
Publication restriction: No publication until further order.

Judgment

By Notice of Motion dated 9 March 2016 The Director of Public Prosecutions (DPP) sought orders in the following terms: –

The name of Mohammed Hamzy or any name or nickname by which he is known, be suppressed pursuant to s 7 of the Court Suppression and Non-publication Orders Act2010 until further order. The Crown applies for the non-publication and suppression orders pursuant to s8(1)(a), that it is necessary to prevent prejudice to the proper administration of justice and…

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 294
Decision Date: 21 March 2016

CaseChat Overview and Summary

In the case of R v Qaumi (No 12), the appellant was charged with conspiracy to traffic in dangerous drugs. The dispute arose from an application by the Crown to the Supreme Court of Victoria for a suppression order to prevent publication of prejudicial information during the trial of the appellant, and to maintain such an order in place beyond the conclusion of the appellant's trial. The orders were sought due to the extensive media coverage of a related trial of other accused persons, which was considered potentially prejudicial.

The primary legal issues the court was required to address were whether the suppression and non-publication orders were necessary to ensure the appellant received a fair trial, and if so, whether these orders should remain in force post-trial. The court considered the principles underpinning the open justice system, the public interest in reporting court proceedings, and the necessity of protecting the accused's right to a fair trial in light of adverse publicity.

The court concluded that the orders were justified to prevent prejudice to the proper administration of justice. It found that the extensive and potentially prejudicial media coverage during the trial of other accused persons created a substantial risk of prejudicing the appellant's trial. The court emphasised the need to balance the right to a fair trial with the public interest in open justice. The suppression and non-publication orders were deemed necessary to mitigate the risk of prejudice and to ensure the integrity of the judicial process. Consequently, the orders were maintained beyond the conclusion of the appellant's trial.

The final orders of the court were to uphold the suppression and non-publication orders, preventing the publication of prejudicial information during and after the trial of the appellant. This decision underscored the court's commitment to ensuring that criminal trials are conducted in a manner that upholds the principles of fairness and justice.

Orders