R v Qaumi (No 19)

[2016] NSWSC 352

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 19) [2016] NSWSC 352
Hearing dates:	30 March 2016
Date of orders:	30 March 2016
Decision date:	30 March 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Non-publication orders made (see paragraph 9-12)
Catchwords:	CRIMINAL LAW – evidence given at Crime Commission made available to lawyers in criminal trial – non-publication order – material not to be published beyond legitimate use in trial proceedings – no question of principle
Legislation Cited:	Court Suppression Non-Publication Orders Act 2010 (NSW)
Cases Cited:	R v Qaumi & Ors (No 11) (s 45 Crime Commission Act) 2016 NSWSC 211
Category:	Procedural and other rulings
Parties:	Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Mohammed Zarshoy Mohammed Kalal NSW Crime Commission
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) G Clarke (Kalal) R McIlwaine (NSW Crime Commission)   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; 2014/66939NSW Crown Solicitors Office (NSW Crime Commission)
Publication restriction:	No publication until the conclusion of the trial.

EX tempore Judgment (revised)

1. The New South Wales Crime Commission by notice of motion seeks certain orders under the Court Suppression Non-Publication Orders Act 2010 (NSW) (“the Act”). The application arises out of a judgment published on 21 March 2016 called R v Qaumi & Ors (No 11)(s 45 Crime Commission Act) [2016] NSWSC 211. On that day I made orders under s 45 of the Crime Commission Act 2012 (NSW) that a redacted transcript of evidence given before the Crime Commission be made available to Senior Counsel for Farhad Qaumi, his junior counsel, and his instructing solicitor. There were a number of conditions placed upon that order.

2. The question then became: what use could be made of that material once released to the legal representatives of Farhad Qaumi? The Crime Commission contends that it can properly be used for the purpose of cross-examination in these proceedings, and for any other proper purpose in these proceedings.

3. Today Mr Young of Senior Counsel, on behalf Mumtaz Qaumi, filed a notice of motion and the orders sought were not objected to. That resulted in orders varying the original orders so that Mr Young SC and his solicitors (two individuals who are named) also being able to have access to the material on the same restricted basis.

4. I have been advised by at least two of the remaining three accused – and expect that the third will also join – that they intend to seek access to the material.

5. For abundant caution the Crime Commission seeks orders whereby there is some restriction placed on the publication of the evidence which is material of sensitive nature, because of its nature (that is to say, secret evidence given before the New South Wales Crime Commission).

6. I am satisfied that the orders should be made, given the nature of the work that the Crime Commission does, and the fact that the evidence given by witnesses is generally subject to a non-publication order made by the commission itself, and indeed, that is true of the present evidence.

7. I note that the media is not present today. If any objection is taken by the media to the orders that I make, they can apply for revocation or variation of those orders at any time.

8. Pursuant to s 6 of the Act, I must to take into account the public interest in open justice, and I do so.

9. Pending further order, disclosure of the evidence to be made available to the legal representatives of Farhad Qaumi, Mumtaz Qaumi and the Crown, and if it becomes relevant, the legal representatives of Mohammad Kalal, Mohammad Zarshoy and Jamil Qaumi, pursuant to order 1 made on 21 March 2016, and subsequently varied, or any information derived therefrom is prohibited, save for the proper purposes of these proceedings.

10. I make those orders on the grounds set forth in s 8 1(a) of the Act, namely, that the order is necessary to prevent prejudice to the proper administration of justice, and 8(1)(c) the order is necessary to protect the safety of any person (in this case, the witness who gave the evidence), and (e) that it is otherwise in the public interest for the order to be made, and that public interest significantly outweighs the public interest in open justice.

11. Pursuant to s 11 the order applies throughout the Commonwealth.

12. For the purpose of these orders “these proceedings” encompasses both the trial that is about to commence, and the trial which is to follow, which is a trial of Farhad and Mumtaz Qaumi for the alleged murder of Joseph Antoun.

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Decision last updated: 02 December 2016