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

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

1. 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 s8(1)(e), that it is otherwise necessary in the public interest.

2. Publication of the name of Mohammed Hamzy be restricted until further order, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act2010 to a pseudonym letter.

3. That any evidence or submission tending to reveal the identity of Mohammed Hamzy be suppressed until further order, including but not limited to, any physical description, photograph, alleged position in the group known as Brothers for Life Bankstown, relationship to Mahmoud Hamzy, the address of 142 Greenacre Road Greenacre where Anthony Elkadi was shot, that the mother and sister of Mohammed Hamzy were discussed as targets prior to the shooting of Anthony Elkadi, the charges for which he awaits trial in the Supreme Court, the listing date of his Supreme Court trial or that the trial is imminent in being heard.

4. Such further or other order as this Honourable Court thinks fit.

2. The Notice of Motion was supported by an affidavit sworn by the solicitor with the carriage of the matter for the DPP. That affidavit establishes that Mohammed Hamzy currently stands charged with a number of offences (including offences of murder and shooting with intent to murder) and that his trial is listed to commence in the Supreme Court, Sydney on 14 June 2016. Apart from the charges themselves, the evidence did not identify the nature of the allegations against Mohammed Hamzy and whether they are in any way related to the charges that the current accused face.

3. Mohammed Hamzy was the intended target of the shooting incident which gives rise to counts 1, 2 and 3 on the present indictment. These counts allege; (count 1) the murder of Mahmoud Hamzy (Mohammed Hamzy’s cousin, who on the Crown case was killed by mistake), (count 2) the infliction of grievous bodily harm to Omar Ajaj (by shooting him with intent) and (count 3) conspiring to murder Mohammed Hamzy.

4. To establish these charges, it is anticipated that a good deal of evidence concerning Mohammed Hamzy will be adduced in the prosecution case. To further its case that the series of shootings were part of a “turf war” between rival chapters of the criminal gang known as the Brothers for Life, the Crown will lead evidence that Mohammed Hamzy was in charge of the Brothers for Life at Bankstown and that he had hatched a plan in which one of the present accused (Farhad Qaumi) was to be the victim of an execution style killing. Those are merely examples of the evidence that the Crown will adduce touching upon the character, reputation and criminal activities of Mohammed Hamzy.

5. From what is known of the defence case (which is not a great deal), it is anticipated that the kind of evidence to be adduced by the prosecution will be embraced by the accused. In the course of submissions relating to an application for a Judge alone trial (on which issue, amongst others, I have reserved my decision) the Crown Prosecutor effectively challenged counsel for the accused to eschew reliance on self-defence. Senior Counsel did not do so. Further, in the course of the pre-trial hearings, it is clear that evidence was being sought that would confirm that the Brothers for Life at Bankstown (and Mohammed Hamzy in particular) had plans to kill Farhad Qaumi. From this it can be deduced that the defence will seek to establish the violent and criminal propensity and reputation of Mohammed Hamzy.

6. The DPP seeks orders that will ensure that this kind of evidence and information, or at least information that would identify Mohammed Hamzy as a participant in such activities will not enter the public domain until after his trial. The concern expressed by the DPP, through the learned Crown Prosecutor, is that the release of such information in respect of Mohammed Hamzy will make it difficult for him, perhaps impossible, to obtain a fair trial free of prejudice.

7. Apart from Senior Counsel for Farhad Qaumi’s assistance in relation to the proper form of the order, none of the accused participated in this debate or indicated a position in respect of the Crown’s application. However, two of the accused (Farhad and Mumtaz Qaumi) have sought non-publication and suppression orders of a more wide ranging nature in order to protect their capacity to receive a fair trial in relation to a separate murder that will follow. I hope to publish a judgment in respect of that application later this week.

8. The DPP notified the media of the present application and Mr Lewis of counsel appears on behalf of Nationwide News, Fairfax and the Australian Broadcasting Corporation. Mr Lewis and those who instruct him have played an active role in respect of a number of applications that impact on the media in the course of the pre-trial hearing. While Mr Lewis opposes the orders sought by Farhad and Mumtaz Qaumi (which, incidentally, are strongly supported by the Crown), he takes no position in respect to the present application. He explained his position as being that “we would neither consent nor oppose the order being made”.

9. Before making an order of the kind sought it is necessary to “take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”: s 6 Court Suppression and Non-publication Orders Act 2010 (NSW). However, orders can be made under s 7 of that Act if any of the grounds set out in s 8 are established. Section 8 provides grounds which are couched in terms of necessity. The Crown prosecutor submitted that two of the grounds set out in s 8 are established, namely:

“(a) the order is necessary to prevent prejudice to the proper administration of justice,

and

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.”

10. Sub-section (2) says that any suppression of non-publication orders must specify the ground or grounds upon which the order is made. Section 11 requires the order to specify the place where it is to apply and s 12, which relates to the duration of orders, provides as follows:

“(1) A suppression order or non-publication order operates for the period decided by the court and specified in the order.

(2) In deciding the period for which an order is to operate, the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

(3) The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.”

11. On the hearing of the Notice of Motion the learned Crown Prosecutor did not press the order in paragraph 1 of the Notice of Motion. In respect of paragraphs 2 and 3 there was some debate as to whether 3 should be part of the order or whether I should simply indicate in the course of this judgment the kinds of matters that would constitute a breach of a more general order (assuming that I made it).

12. The parties seemed to suggest that the better course was to make a more general order with the judgment providing guidance as to its content. I do not accept that this is the correct approach. The non-publication order, if it is to be made it, should be plain on its terms. A journalist or a member of the public who might be bound by it should be able to understand its meaning and effect from the terms of the order and not be required to read the reasons for judgment. There was also some debate as to the precise content of order two. Ultimately, the parties seemed to be content for me to formulate the orders as best I can in the limited time available.

13. Having considered the evidence and submissions, I am of the view that both s 8(1)(a) 8(1)(e) are satisfied. Publication of evidence of Mohammed Hamzy’s role as leader of the Brothers for Life Bankstown and his involvement in what the Crown will submit was a turf war between criminal gangs that resulted in a large number of shooting incidents – with allegations of conspiracies and attempts to murder on either side – is likely to impact on the ability of Mohammed Hamzy to receive a fair trial.

14. Publication may result in a further delay of his trial. His trial was previously listed to commence in September last year. That date was vacated for reasons of no present relevance (other than to say, it was no fault of the accused): R v Hamzy [2015] NSWSC 1428. It is inimical to the public interest that a trial of such significance would be forced to be adjourned again because of unfair publicity arising from related proceedings. That public interest outweighs the substantial public interest in open justice. Further the order is necessary to prevent prejudice to the proper administration of justice.

15. Accordingly I make the following orders:

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.

**********

Decision last updated: 02 December 2016