R v Qaumi (No 67)

[2016] NSWSC 1601

Supreme Court

New South Wales

Medium Neutral Citation:

R v Qaumi & Ors (No 67) [2016] NSWSC 1601

Hearing dates:

11 November 2016

Date of orders:

11 November 2016

Decision date:

11 November 2016

Jurisdiction:

Common Law - Criminal

Before:

Hamill J

Decision:

1. All previous non-publication orders are hereby revoked.

2.(a)There is to be no publication of the name of Mohammad Zarshoy.

(b) There is to be no publication of the name of Mohammad Zarshoy in the listing of the matter for trial and he shall be referred to in any such listing as DD.

(c) For the purpose of section 12 of the Court Suppression and Non-Publication Orders Act, orders 2(a) and (b) will remain in place until one of the following events:

(i) The DPP notifies the Court that there will be no further proceedings in relation to the murder charge against Mohammad Zarshoy or

(ii) The commencement of his trial for the charge of murder.

(d) Orders 2(a), (b) and (c) are made on the grounds that they are necessary to prevent prejudice to the proper administration of justice.

(e) For the purpose of section 11 of the Court Suppression and Non-Publication Orders Act, orders 2(a), (b), (c) and (d) will apply throughout the Commonwealth of Australia.

(f) Order 2(a)-(e) does not apply to the publication of judgments on NSW Caselaw or other legal web-sites.

3. The names of the witnesses to which I will presently refer are suppressed until further order of the Court pursuant to section 7 of the Court Suppression and Non-Publication Orders Act, together with any evidence, submission, discussion, document or part thereof and information that might facilitate the identification of the witnesses' names on the following grounds:

(i) The order is necessary to prevent prejudice to the proper administration of justice;

(ii) The order is necessary to protect the safety of the witnesses;

(iii) The order is necessary in the public interest.

4. Publication of the names of the witnesses referred to in order 3 is restricted until further order of the Court pursuant to section 7 of the Act to the respective pseudonym letters allocated to each witness in the list that will follow on the same grounds as those set out in order 3(i) to (iii) above.

5. Without limiting the generality of orders 3 and 4 above, any description or depiction of the physical appearance or other identifying feature of any or all of the witnesses is suppressed until further order of the Court pursuant to section 7 of the Act, except as might be necessary for the proper conduct of proceedings, such as the sentencing proceedings, on the grounds set out in order 3(i) and (ii) above.

6. The witnesses to which orders 3 and 4 apply are the following, along with the pseudonym letters:
Witness A [redacted]
Witness B [redacted]
Witness C [redacted]
Witness D [redacted]
Witness E [redacted]
Witness F [redacted]
Witness G [redacted]
Witness I [redacted]
Witness J [redacted]
Witness K [redacted]
Witness L [redacted]
Witness M [redacted]

7. Finally, those orders in relation to suppression of names and identity will also apply to the undercover police officer referred to in the trial as "[redacted]". The witness [redacted] should not be referred to by name, including the name [redacted].

Catchwords:

CRIMINAL LAW – revocation of non-publication orders – public interest in open justice – not necessary to continue orders – supression orders – identity of informants witnesses and undercover police officers – preducie to administraiton of justice – release of exhibits – CCTV footage of courtroom – violent incident in dock – evidence not tendered in trial – jury not made aware of incident – incident able to be observed by any person in court at the time – practice note generally allowing access to third parties to court file – disc tendered in contempt proceedings – exhibit released to media

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Cases Cited:

Nationwide News v Qaumi [2016] NSWCCA 9
R v Qaumi & Ors (No 9) [2016] NSWSC 171
R v Qaumi & Ors (No 13) [2016] NSWSC 337
R v Qaumi & Ors (No 15) [2016] NSWSC 318
R v Qaumi & Ors (No 50) [2016] NSWSC 1036
R v Qaumi & Ors (No 55) [2016] NSWSC 1068

Category:

Procedural and other rulings

Parties:

Nationwide News, Fairfax and the Australian Broadcasting Corporation (Intervenors)
Regina
Farhad Qaumi
Mumtaz Qaumi
Jamil Qaumi
Mohammad Zarshoy
Mohammed Kalal

Representation:

Counsel:
M Lewis (Intervenors)
K McKay & P Hogan (Crown)
J Stratton SC & M Curry (F Qaumi)
P Young SC (M Quami)
N Carroll (J Quami)
R Driels (M Zarshoy)
G Clarke (M Kalal)
Solicitors:
In-house counsel for media organisations (Intervenors)
Solicitor for the NSW DPP(Crown)
Archbold Legal (F Qaumi)
George Sten & Co (M Quami)
Bannisters Lawyers (J Quami)
Zahr Lawyers (M Zarshoy)
Hallak Law (M 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 – 2014/316236Mohammed Kalal - 2013/344739; 2014/66939

Publication restriction:

No publication until the conclusion of the trial.

Judgment

1. On Friday 11 November 2016, over the objection of three of the accused, I made orders revoking all previous non-publication orders in this matter. I also made orders suppressing the names and identities of various witnesses and restricting the publication of the name of Mohammed Zarshoy who may face a re-trial in relation to a murder charge upon which jury was unable to reach a unanimous verdict. Finally, I directed that the media could have access to some of the exhibits but, based on the objection of counsel, not others.

The lifting of the non-publication order in the joint trial.

2. This case involved five shooting incidents and a number of other offences arising out of the activities of a group called the Brothers for Life Blacktown. The pre-trial hearings and jury trial have occupied most of the last year. The pre-trial commenced in November 2015 and the jury was empanelled in early April 2016. The evidence and submisisons have been subject to non-publication orders from an early stage of the pre-trial hearings. Initially, the orders were designed to ensure that a potential jury did not become aware of material that may be excluded from the trial. In March 2016 there was a substantial argument in relation to whether non-publication orders should be made over the evidence in the trial of the five accused. Over strong objection by the media I made a number of orders: R v Qaumi & Ors(No 15) [2016] NSWSC 318. The most potent reason for making that order was the concern over the contamination of a a jury pool to be summoned for a second trial of two of the accused (Farhad Qaumi and Mumtaz Qaumi) for the alleged contract killing of Joseph Antoun. Alternative solutions such as delaying the trial or changing the venue were not feasible for the reasons set out in R v Qaumi & Ors (No 15) at [73]–[91]. The media interests appealed this decision, and in particular argued that I had erred in not giving priorty to the public interest in open justice over the desirability of having the Antoun trial proceed expeditiously. The Court of Criminal Appeal (Bathurst CJ, Beazley P and Hoeben CJ at CL) dismissed the appeal: Nationwide News v Qaumi [2016] NSWCCA 97.

3. The jury returned its verdicts on Tuesday 8 November 2016. By that time, an order had been made for the Antoun murder trial to be conducted by judge alone and that trial has been proceding (with inevitable disruptions due to questions and notes from the jury, as well as delays caused by the late service of material on the defence) since 31 October 2016. In light of the conclusion of the trial and the fact that the Antoun murder tiral is proceeding by Judge alone, I listed the matter on Friday 11 November 2016 to determine whether the non-publication orders should be revoked or, perhaps more correctly given the form of the order under s 12 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), whether the orders should be continued or whether further, modified orders should be made.

4. The grounds upon which it was submitted that the orders should be continued or renewed was that several of the accused have trials listed next year or which will be listed next year. These include:

1. Trials of Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi in relation to shooting incidents that occurred before the incident giving rise to the current proceedings but in the context of their membership of the Brothers For Life at Blacktown. These trial are listed to take place in the District Court in August 2017.

2. The possible re-trial of Mumtaz Qaumi on one count of soliciting murder. This was a count upon which the jury was unable to reach a verdict. Assuming the Director of Public Prosecutions determines to continue with that trial, in the light of verdicts returned by the jury and the limited evidence available in respect of that particular offence, the trial will be listed in the District Court at some stage, presumably in the latter half of next year.

3. The possible re-trial of Mohammad Zarshoy for the murder of Mahmoud Hamzy, infliction of grievious bodily harm with intent of Omar Ajaj and participation in a criminal group. These were counts upon which the jury could not reach a verdict. This matter will be listed in this Court at some stage next year. The Director of Public Prosecutions is to make a decision as to whether to procede with this prosecution by Wednesday 30 November 2016 when the matter is listed for mention. It may be that a trial date will then be fixed but it is unlikely to be listed before the second half of 2017.

5. There may also be a retrial of the accused Mohammed Kalal. However, he did not seek to be heard on the question of whether there should be any continuing non-publication orders.

6. I discussed in some detail the counterveilling considerations relevant to a determination of whether to order non-publication of criminal proceedings in R v Qaumi & Ors (No 15). The Court of Criminal Appeal undertook a similar review of the law in Nationwide News v Qaumi. It is unnecessary to repeat that analysis. However, it is worth remembering that the current proceedings were described as “extraordinary” by the Court of Criminal Appeal and that the primary justification for the engthy and onerous non-publication order, in spite of general principles favouring the public interest in open justice, was the proximity of the Antoun trial and the danger of contaminating the potential jury pool.

7. I accept that there is some capacity for media coverage of the present proceedings to cause prejudice to the proceedings that are to be conducted next year. However, there are a number of steps that can be taken by the District Court to protect the process of the Court and these, along with the general judicial acceptance of the robustness of juries, have been referred to in my earlier judgments: see, for example, R v Qaumi & Qaumi [2016] NSWSC 1473 at [32] – [35].

8. The test of necessity as encapsualted in ss 8 of the Court Suppression and Non-Publication Orders Act is not met in the circumstances as they now present. Pursuant to s 6 of the same statute, I must take into acount that a primary object of the aministration of justice is to safeguard the public interest in open justice. For those reasons, I revoked the earlier non-publication order.

Mr Zarshoy’s name and identity

9. However, to protect Mr Zarshoy from the possibility that his right to a fair trial might be undermined by prejudicial publicity, I determined that it was necessary to make orders that he should not be named or identified in the coverage of the trial that has just concluded or in the listing of the re-trial. The inability of the media to report the name of an accused upon whose case the jury was unable to reach a unanimous verdict does not represent a significant derogation on the principle and public interest on open justice.

10. Having determined make orders prohibiting the publication of the name of Mr Zarshoy, I considered whether these order should apply to pulbication of judgments on NSW Caselaw or other legal web-sites. I came to a preliminary determination that they should not. I contacted the lawyers for Mr Zarshoy to give them the opportunity to be heard. They indicated that there was no opposition to an exemption from the orders in the case of publication on Caselaw or other legal web-sites.

Protection of witnesses and suppression of their identities.

11. No objection was taken by the media to continuation or renewal of the pseudonym and suppression orders relating to the identities of witnesses known as A, B, C, D, E, F, G, I, J, K, L and M. These orders were made on 7 and 21 March 2016: R v Qaumi & Ors (No 9) [2016] NSWSC 171, R v Qaumi & Ors (No 13) [2016] NSWSC 337.

12. Each of these witnesses was an informant and evidence was provided earlier in the trial which established the possibility that they may be subject to reprisal or placed in danger if orders were not made to protect them. Not only is it necessary to protect the identity of the individuals, it is also important that those who may offer to assist in ongoing or future investigations are aware that the Court will do what it can to protect them.

13. Accordingly, I was satisfied that orders were necessary to prevent prejudice to the proper administration of justice and to protect the safety of the witnesses: see ss 6(1)(a) and (c) Court Suppression and Non-Publication Ordrs Act.

14. The same grounds applied to an order protecting the identity of an undercover police officer known as ‘[redacted]’. Again, there was no objection to this order being renewed and it was necessary to protect an officer who is still working in the field: R v Qaumi & Ors(No 50) [2016] NSWSC 1036.

Release of exhibits to the media

15. Several journalists sought release of a number of the exhibits tendered in the trial and, in two instances, exhibits that were tendered on the voir dire. There was objection by some of the accused to the release of three of the exhibits. Ultimately, I directed that all but two of the exhibits could be released to the media and arrangments made with the Court’s media liaison officer for the exhibits to be copied.

16. Generally, exhibits are to be made available to the media unless a Judge otherwise orders. This accords with general principles of open justice and with Supreme Court Practice Note SC Gen 2 (Access to Court Files). Paragraph 7 of the Practice Note provides:

“Access will normally be granted to non-parties in respect of:

pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential;

documents that record what was said or done in open court;

material that was admitted into evidence; and

information that would have been heard or seen by any person present in open court,

unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist.”

17. The first exhibit to which objection was taken was Ex 5Sx (SSSSSS). This comprised of a number of photographs depicting the accused Zarshoy with Witness L. Given that any information that might disclose the identiity of witness L has been suppressed, and in view of the orders made in relation to Mr Zarshoy, I formed the view that this document should be kept confidential. I did not allow release of this exhibit.

18. The next document was a document tendred as Exhibit EE on the voir dire. This document was tendered on a number of pre-trial issues to demonstrate the areas of evidence showing uncharged acts that the parties had agreed would be admissible to place the events in context. There was a significant body of evidence presented in the trial itself which can be reported. The document was not evidence in any real sense and whether it accurately set out the evidence that was ultimately led I cannot say. Upon objection, the media did not press for release of the exhibit. I did not allow its release.

19. Senior Counsel for Farhad Qaumi and Mumtaz Qaumi also objected to the media having access to exhibit 32 on the voir dire. This was a disc containing a portion of CCTV footage that depicted a violent incident in the dock between several of the accused men. The result of this incident was that I was forced to orer the building of a partition that separated two of the accused from the remaining three accused: R v Qaumi & Ors (No 55) [2016] NSWSC 1068. It was submitted that the disc was not tendered in the trial. While this is true, it is part of the evidence on a charge of contempt to which Mumtaz Qaumi and Jamil Qaumi have pleaded guilty. Further, it was an incident that occurred in open court and would have been seen and heard by any person in the court. The security of the court is a matter of public interest: R v Qaumi & Ors (No 55) [2016] NSWSC 1068. I could swee no reason why the ordinary consequence of the practice note should not apply. I allowed access to the exhibit.

20. ORDERS

21. For those reasons the following orders were made:

1. All previous non-publication orders made by me are hereby revoked.

(a)There is to be no publication of the name of Mohammad Zarshoy. 

(b) There is to be no publication of the name of Mohammad Zarshoy in the listing of the matter for trial and he shall be referred to in any such listing as DD. (c) For the purpose of section 12 of the Court Suppression and Non-Publication Orders Act, orders 2(a) and (b) will remain in place until one of the following events:

(i) The DPP notifies the Court that there will be no further proceedings in relation to the murder charge against Mohammad Zarshoy; or

(ii) The commencement of his trial for the charge of murder.

(d) Orders 2(a), (b) and (c) are made on the grounds that they are necessary to prevent prejudice to the proper administration of justice.

(e) For the purpose of section 11 of the Court Suppression and Non-Publication Orders Act, orders 2(a), (b), (c) and (d) will apply throughout the Commonwealth of Australia.

(f) Order 2(a)-(e) does not apply to the publication of judgments on NSW Caselaw or other legal web-sites

3. The names of the witnesses to which I will presently refer are suppressed until further order of the Court pursuant to section 7 of the Court Suppression and Non-Publication Orders Act, together with any evidence, submission, discussion, document or part thereof and information that might facilitate the identification of the witnesses' names on the following grounds:

(i) The order is necessary to prevent prejudice to the proper administration of justice;

(ii) The order is necessary to protect the safety of the witnesses;

(iii) The order is necessary in the public interest.

5. Publication of the names of the witnesses referred to in order 3 is restricted until further order of the Court pursuant to section 7 of the Act to the respective pseudonym letters allocated to each witness in the list that will follow on the same grounds as those set out in order 3(i) to (iii) above. Without limiting the generality of orders 3 and 4 above, any description or depiction of the physical appearance or other identifying feature of any or all of the witnesses is suppressed until further order of the Court pursuant to section 7 of the Act, except as might be necessary for the proper conduct of proceedings, such as the sentencing proceedings, on the grounds set out in order 3(i) and (ii) above.

6. The witnesses to whom orders 4, 5 and 6 apply are the following, along with the pseudonym letters:

Witness A [redacted]

Witness B [redacted]

Witness C [redacted]

Witness D [redacted]

Witness E [redacted]

Witness F [redacted]

Witness G [redacted]

Witness I [redacted]

Witness J [redacted]

Witness K [redacted]

Witness L [redacted]

Witness M [redacted]

7. Finally, those orders in relation to suppression of names and identity will also apply to the undercover police officer referred to in the trial as "[redacted]". The witness [redacted] should not be referred to by name, including the name [redacted].

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Decision last updated: 16 December 2016