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

1. 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.

2. These are my reasons for making those orders.

3. 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 to continue on Friday 1 April 2016 and she will be sentenced shortly after that.

4. In support of the notice of motion, the Commission read an open affidavit and a closed affidavit. Based on that material, as well as material adduced during the course of the lengthy pre-trial hearing between November 2015 and March 2016, I was satisfied that the orders were necessary to protect the safety of the witness: see s 8(1)(c) Court Suppression and Non-Publication Orders Act 2010 (NSW). The ground set out in s 8(1)(a) and 8(1)(e) of that Act are also satisfied. The orders that were made in respect of the twelve other witnesses were made on the same grounds. My reasons are more fully set out in the judgment published on 7 March 2016: R v Qaumi & Ors (No 9). The relevant legal principles and factual circumstances are set out in that judgment as well as in an earlier judgment in which similar orders for the purpose of the pre-trial hearing were made: R v Qaumi & Ors(AVL) [2015] NSWSC 1711.

5. In the course of the pre-trial hearing, there have been two incidents which heightened the concerns for the safety of the witness. These included an incident where words of abuse were shouted across the dock between the witness and one or more of the other accused. There was another incident, apparently not directly involving the witness and shortly before I came on to the bench, in which some of the accused had a physical fight. After that fight, a razor blade was located in the dock. How it came to be there remains a mystery and, as I understand it, is subject to ongoing investigation.

6. It is inappropriate to set out the material provided in the closed affidavit but it satisfies me that it is necessary to make the orders sought by the Commissioner in order to protect the safety of the witness.

7. None of the accused opposed the orders and the learned Crown Prosecutor supported the orders. Relevant media outlets were notified of the application and did not seek to be heard in opposition to the orders.

8. In terms of the provisions of the Court Suppression and Non-Publication Orders Act, the grounds upon which I am satisfied the orders should be made are:

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

(c) the order is necessary to protect the safety of any person,

(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.

9. The notice of motion also sought an order for the courtroom to be closed during the evidence given by the witness. I was not persuaded that such an order was necessary, especially giving effect to s 6 of the Court Suppression Act. I dealt with this kind of application in the course of my judgment in the R v Qaumi & Ors (No 9) at [17] - [31]. Except in the case of one of the 12 witnesses, I declined to make such orders. There were particular reasons that I made the order in respect of that one witness. Those reasons arose from material in a confidential affidavit tendered on that application. I was unable to discern such compelling circumstances in the case of the present witness. She actively participated in the trial from November through to March. She was on bail throughout that time and there was, according to submissions made to me on an application by her solicitor, threats on her life throughout that period.

10. At the conclusion of submissions on 21 March 2016, I determined that I should defer making a decision on the question of whether the court should be closed during the hearing of the witness’s evidence. That was partially because her custodial status was not then known, whereas it would be clear by the time that she is called to give evidence in the trial. She is now in custody and, as I understand it, in some form of protection.

11. On the evidence before me on 21 March 2016, I was not satisfied that an order should be made for the closure of the court. However, I leave open the possibility that the Commissioner, or the Director of Public Prosecutions, make seek to further ventilate this issue closer to the time that it is proposed that she will be called as a witness. By that time, the length of her sentence, the nature of her custodial conditions and other matters relevant to her security and safety will be better known and able to be established by evidence.

12. On 21 March 2016, I also made orders restricting the cross examination of witness M on the basis that certain lines of cross examination may lead to the accused or their associates knowing the whereabouts of the witness and/or her family. None of the accused sought to be heard in opposition to the limited restrictions on cross-examination sought by the Commissioner.

13. For those reasons I varied the orders made in R v Qaumi (No 9) as follows:

1. In order 1, the letter "L" should be amended to read "M" in what is the fourth line of the orders as published in the judgment.

2. At the end of order 1, there will be a new subparagraph (m) and then the words "witness M – [redacted]".

3. In order 11, reference to "witnesses A to L" on three occasions will be amended to read "witnesses A to M"

4. In relation to the application by the Commissioner to close the Court, I order that the Court is to be closed to the public during any pre‑trial Basha inquiry, but I reserve making a decision in relation to whether the Court will be closed in the course of the trial proper until after Ms [redacted] has been sentenced.

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Decision last updated: 02 February 2017