R v Qaumi (No 51)

[2016] NSWSC 1054

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 51) [2016] NSWSC 1054
Hearing dates:	1 August 2016
Date of orders:	01 August 2016
Decision date:	01 August 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Non-publication orders made – see para [14].
Catchwords:	CRIMINAL LAW – violent incident in court – public interest in security of court – desirability of full reporting – administration of justice
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW)
Cases Cited:	Nationwide News Limited v Qaumi [2016] NSWCCA 97 R v Qaumi and Ors (No 15) [2016] NSWSC 318
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) G Clarke (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 the conclusion of the trial.

EX TEMPORE Judgment

1. Shortly after quarter past two this afternoon when the jury in the trial was allowed to disperse so that certain legal arguments could occur, there was an incident between certain accused within the dock area. That incident, as I have earlier described, was of a very violent nature and seemed to be the culmination of something that had been brewing in the course of the day when words had been exchanged between some of the accused. For that reason, the trial, at least in terms of the legal argument, is currently progressing in the absence of the accused.

2. Mr Young, on behalf of Mumtaz Qaumi, with the concurrence of the learned Crown Prosecutor, has asked that orders be made essentially suppressing, as it was put, reporting of that incident.

3. I have earlier in the trial made a variety of non-publication orders: see, for example, R v Qaumi and Ors (No 15) [2016] NSWSC 318. That judgment was subject to an appeal by Nationwide News and I think the Australian Broadcasting Corporation but the orders were upheld, see: Nationwide News Limited v Qaumi [2016] NSWCCA 97. Both of those judgments have non-publication orders until the conclusion of the trials, and I emphasise the word in the plural.

4. The incident that occurred today occurred in my presence and the accused were restrained and taken from the courtroom. The goings on inside a courtroom and the security of court staff, the security of the lawyers, security of Corrective Services officers is a matter of public interest and is a matter which ought properly to be the subject of fair and full reportage or reporting and the media certainly has an interest in being heard if any suppression or non-publication orders are made.

5. The starting point under the Court Suppression and Non-publication Orders Act 2010 (NSW) is that any orders must be made taking into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: see s 6 of the Court Suppression and Non-publication Orders Act.

6. Similarly, the grounds for making an order set out in s 8 of that Act all require a high test of necessity to be met before an order for non-publication is made.

7. It is implicit in the submission made by Mr Young, or the application made by Mr Young, that it is necessary to prevent prejudice to the proper administration of justice, that being that this trial be allowed to continue without any media reporting influencing the jury. Certainly it would be inconceivable that the jury will be informed of what happened in their absence, although steps may have to be taken to separate the accused in some way and possibly to screen them from access to the courtroom, although I am hoping that such orders are ultimately not necessary. That is a matter for another time.

8. The reporting of the particular incident does have a capacity to undermine the non-publication orders that have already been made and upheld by the Court of Appeal and also have the capacity to prejudice the trial. For those reasons, I am of the view that an order is necessary to prevent prejudice to the proper administration of justice.

9. I am also of the view that it is in the public interest for this trial to continue to its conclusion. We have almost reached the end of the Crown case and, whilst I am not currently aware of what might be involved in the defence case, if any, it can reasonably be expected that there will be a verdict in this trial in the coming weeks or months, and the reporting of the incident, if it is considered to be appropriate to report it, can happen then. So that I am not suppressing altogether but, rather, delaying the publication of the incident.

10. I am, accordingly, going to make an order that there be no publication of the incident that occurred in Court at around 2.15 this afternoon involving some of the accused men. I note incidentally that at that stage there was no member of the press or media present in the courtroom but that somehow in the ensuing hour or 45 minutes, something like five esteemed members of the press arrived in the back of the Court. How they came to know of the incident; well, who knows?

11. In any event, the reporting of the incident can occur but at a later stage.

12. I am also conscious of the fact that the media interests have not been represented on this application and would certainly hear from them if there was any submission that the order should either be varied or revoked.

13. The grounds upon which I make the order are those set out in s 8(1)(a) and 8(1)(e). That is the public interest in the trial continuing to a verdict without any prejudicial publicity and that public interest significantly outweighing the public interest in open justice.

14. Like the other orders made both by me and by the Court of Appeal, pursuant to s 12 the orders will remain in place until the conclusion of the trial of Farhad Qaumi and Mumtaz Qaumi in relation to the murder of Joseph Antoun, or until further order. Pursuant to s 11 of the Court Suppression and Non-publication Orders Act, the non-publication order applies throughout the Commonwealth of Australia.

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Decision last updated: 30 November 2016