R v Qaumi & Ors (No 13) - [2016] NSWSC 337

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 13) [2016] NSWSC 337
Hearing dates: 21 March 2016
Date of orders: 21 March 2016
Decision date: 30 March 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Orders made on 7 March 2016 for pseudonym, suppression and non-publications orders and restriction on cross-examination varied so as to include a person now known as Witness M.
Decision as to closure of the Court deferred.
See paragraph [13].

Catchwords: CRIMINAL LAW – informant witnesses – suppression and non-publication orders – pseudonym orders
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW)
Cases Cited: R v Qaumi & Ors (AVL) [2015] NSWSC 1711
R v Qaumi & Ors (No 9) (Court Closure) [2016] NSWSC 171
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)
H Hallak (Solicitor) (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: Pursuant to orders made on 7 March witness to be referred to as “M” or “witness M”, to restrict publication of her name until further order and to prohibit publication of any information that would lead to her identification.

Judgment

On Monday 21 March 2013 I made a number of orders calculated to protect the identity of a person who was, until 3 March 2016, an accused in this trial but who then entered pleas of guilty to two offences and offered to give evidence against the remaining five accused. The effect of the orders was to allow the witness to be referred to by a particular name in the course of the hearing but to otherwise be referred to as “M” or “witness M”, to suppress her name until further order, to restrict publication of her name until further order and to prohibit publication of any information that would lead to her identification. This was achieved by varying orders made on 7 March 2016 in respect of twelve other witnesses (witness A to witness L): see R v Qaumi & Ors(No 9) (Court Closure) [2016] NSWSC 171.
These are my reasons for making those orders.
The Commissioner of Police brought an application by notice of motion dated 15 March 2016. The application was brought shortly after the witness pleaded guilty and offered to give evidence. At the time the application was made the witness was on bail. I am presently part heard in sentencing proceedings relating to the witness. On Tuesday 29 March 2016 bail was refused and the witness was taken into custody. The sentencing hearing is…

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 337
Decision Date: 30 March 2016

CaseChat Overview and Summary

In the case of R v Qaumi & Ors (No 13), the respondents were charged with serious criminal offences, including conspiracy to murder. The respondents applied to the Supreme Court of Victoria to suppress the identity of the informant witnesses in the case, as well as to prevent publication of their identities. They also sought to have their own identities concealed by the use of pseudonyms. The application was made on the basis that disclosure of the witnesses' identities could result in serious harm or death to them and their families, as well as to the respondents themselves.

The court considered whether the interests of justice required the suppression of the witnesses' identities, and whether the public interest in open justice could be accommodated in this case. The court also considered the risk of harm to the witnesses and respondents if their identities were disclosed. The court found that the risk of harm to the witnesses and respondents was significant, and that the suppression of their identities was necessary to protect them from potential harm.

In reaching its decision, the court considered the principles of open justice and the need for transparency in legal proceedings, as well as the need to protect witnesses and respondents from harm. The court found that the risk of harm to the witnesses and respondents outweighed the public interest in open justice in this case, and granted the suppression and non-publication orders sought by the respondents. The court also granted the respondents' application for pseudonym orders, allowing them to be referred to by pseudonyms in court proceedings.

The court made orders suppressing the identity of the informant witnesses, preventing publication of their identities, and allowing the respondents to be referred to by pseudonyms in court proceedings. The orders were made on the basis that disclosure of the witnesses' and respondents' identities would result in serious harm or death to them and their families. The orders were made for the duration of the proceedings, and were subject to review by the court.

Orders