R v Qaumi & Ors (No 9) (Court Closure)

[2016] NSWSC 171

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Qaumi & Ors (No 9) [2016] NSWSC 171

Hearing dates:

29 February – 1 March 2016

Date of orders:

07 March 2016

Decision date:

07 March 2016

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) For the purposes of these proceedings, including any other or further interlocutory applications conducted in connection with these proceedings, the proposed Crown witnesses who have given statements under the identifying pseudonym letters "A" to "L" inclusive (collectively referred to in these orders as "the witnesses"), shall each be referred to by the name recorded hereunder beside each said pseudonym letter (collectively, the “witnesses' names"):
(a) Witness A
(b) Witness B
(c) Witness C
(d) Witness D
(e) Witness E
(f) Witness F
(g) Witness G
(h) Witness H - Michael Odisho;
(i) Witness I
(j) Witness J
(k) Witness K
(l) Witness L

 

(2) The names of the witnesses referred to in Order (1) be suppressed until further order of the Court pursuant to s 7 of the Court Suppression and Non-Publication Act 2010 (NSW), 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.

 

(3) Publication of the witnesses' names be restricted until further order of the Court, pursuant to s 7 of the Act, to the respective pseudonym letters allocated to each witness in Order 1(a) to (I) above, on the grounds set out in Orders 2 (i) to (iii) above. (For the sake of clarity, this order relates to the witnesses named in Order 1 above).

 

(4) Without limiting the generality of Orders 2 and 3 above, any description or depiction of the physical appearance or other identifying feature of any or all of the witnesses be suppressed until further order of the Court, pursuant to s 7 of the Act, except as might be necessary for the proper conduct of the proceedings, on the grounds set out in Order 2 (i) to (ii) above.

 

(5) Pursuant to s 7 of the Act, and until further order, there is to be no publication of the evidence, information given about the evidence or submissions made in the pre-trial hearing on the ground that the order is necessary to prevent prejudice to the proper administration of justice.

 

(6) Orders 2, 3, 4 and 5 above are to apply throughout the Commonwealth of Australia, pursuant to s 11 (2) of the Act.

 

(7) All other non-publication and suppression orders, and exceptions and variations thereto, previously made are confirmed until further order.

 

(8) The applications for directions under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) that witnesses A – L give evidence in the trial proceedings by audio visual link are refused.

 

(9) Direct that the Court be closed during the evidence of Witness B subject to the following being permitted to be present in the Court while they give evidence:
(a) The accused persons and their legal representatives;
(b) The prosecution;
(c) Officers of the NSW Police Force involved in investigating the offences before the court;
(d) Legal representatives of the Commissioner of Police;
(e) Staff of the Department of Corrective Services and Sherriff’s Office;
(f) Supreme Court staff, and
(g) Employees of a news media organisation (meaning a commercial enterprise that engaged in the business of publishing news, or a public broadcasting service that engaged in the dissemination of news through a public news medium.

 

(10) Subject to order 9, the application for closure of the Court is refused.

(11) Pursuant to s 130 Evidence Act 1995 (NSW), I disallow any question in cross-examination of witnesses A – L and officers of the NSW Police Force that would disclose:
(i) Details of the residential location and current employment details of witnesses A – L or any member of the family.
(ii) Whether or not the any of the witnesses A – L have been relocated and whether or not any monies have been provided to them for such relocations.

Catchwords:

CRIMINAL LAW – open justice – suppression and non-publication orders – orders necessary to protect identity of informants – application for closure of court during the evidence of twelve witnesses – witnesses treated as a “job lot” – suggestion that members of the public be registered to gain admission to Court – anathema to recognised principles of open justice – courts should be open to ensure scrutiny – functioning democracy – evidence relating to one witness in a different category – closure of the court justified in one instance – restriction of cross-examination – disclosure of information regarding relocation of witnesses – limited restriction necessary to protect witnesses

Legislation Cited:

Coroners Act 2009 (NSW)
Court Suppression and Non-Publication Act 2010 (NSW)
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:

Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125
Hogan v Hinch [2011] HCA 4; 243 CLR 506
John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344
R v NK (No 3) [2015] NSWSC 1257
R v Qaumi and Ors (AVL) [2015] NSWSC 1711

Category:

Procedural and other rulings

Parties:

Nationwide News
Regina
Farhad Qaumi
Mumtaz Qaumi
Jamil Qaumi
Witness M
Mohammed Zarshoy
Mohammed Kalal

Representation:

Counsel:
L Mullins (Solicitor) (Nationwide News)
K McKay & P Hogan (Crown)
J Stratton SC & M Curry (F Qaumi)
P Young SC (M Quami)
N Carroll(J Quami)
Z Katiz (Solicitor) (Witness M)
R Driels (Zarshoy)
L McSpedden (Kalal)

  Solicitors:
News Corp (Nationwide News)
Solicitor for the NSW DPP(Crown)
Archbold Legal (F Qaumi)
George Sten& Co (M Quami)
Bannisters Lawyers (J Quami)
Oxford Lawyers (Witness M)
Zahr Lawyers (Zarshoy)
Hallak Law (Kalal)

File Number(s):

Farhad Quami - 2014/6809; 2014/315201; 2014/315252, Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260,Jamil Quami - 2013/336086; 2014/18164; 2014315253, Witness M – 2014/90422; 2014/315510, Mohammad Zarshoy – 2014/316236, Mohammad Kalal - 2013/344739; 2014/66939

Publication restriction:

No publication until further order.

Judgment

1. The New South Wales Commissioner of Police (“the Commissioner”) seeks orders pursuant to the Court Suppression and Non-Publication Act 2010 (NSW) (“the Act”). Further, pursuant to the Court’s inherent power as a to control its own process, the Commissioner seeks an order that the court room be closed to the public during the hearing of particular parts of the evidence. Calling in aid a claim for public interest immunity and relying on s 130 Evidence Act 1995 (NSW), the Commissioner also seeks certain orders that the accused be restricted in a very particular way in their cross examination of certain witnesses.

2. This judgment must be read with an earlier judgment in which similar orders were sought during the currency of a lengthy pre-trial hearing which is about to come to an end: R v Qaumi and Ors (AVL) [2015] NSWSC 1711. I will generally refer to this as “the earlier judgment” or “R v Qaumi (AVL)”.

3. In support of the application, the Commissioner read an open affidavit (which itself is subject to a non-publication order) as well as a “closed” or “confidential” affidavit and also relied on the evidence that had been adduced in support of the earlier application.

Suppression and non-publication orders

4. There is little controversy surrounding the application for suppression and non-publication orders. Such orders were made as part of the pre-trial hearings, voir dire and Basha inquiry: see R v Qaumi and Ors (AVL) at [20]-[22], [89]-[90] and [100](3)-(7). In essence, the Commissioner submits (and I accept) that it is necessary to make orders prohibiting the publication of evidence which would have a capacity to enable particular witnesses to be identified, either by name or sight. The witnesses in question are informants or, to adopt the expression used most frequently in the course of the pre-trial hearing “roll-over” witnesses. It is well recognised that such witnesses may be subject to reprisal by the people against whom they are giving evidence and also, more generally, by members of the criminal underworld or milieu. It is a well-recognised area of public interest immunity. It was on that basis that I made orders earlier in the course of the pre-trial hearing designed to protect the safety of the witnesses by suppressing publication of evidence that might lead to their identification.

5. Each of the accused consented to (or at least raised no objection to) the making of orders such as those proposed in the Commissioner’s Further Amended Notice of Motion (FANOM). Nevertheless, the general principle is that our courts are open to the public and amenable to full and fair reporting. For that reason, various media organisations were notified of the Commissioner’s application and one (Nationwide News) took the opportunity to be heard on the application. Section 9(2)(d) of the Act gives such organisations standing. The media representatives who appeared did not oppose the making of the suppression and non-publication orders, although they advocated some slight variation in the form of the orders as currently formulated. This was to ensure clarity and to facilitate compliance.

6. I am satisfied that the orders sought by the Commissioner, or something like them, are necessary to prevent prejudice to the proper administration of justice and to protect the safety of the witnesses: see s 8(1)(a) and (c) of the Act. I am also satisfied that “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”: s 8(1)(e) of the Act. It is unnecessary to go into the detail of the evidence apart from noting that a perusal of that material, both open and confidential, easily justifies the conclusions that I have reached under s 8(1) of the Act.

7. For those reason, and on those grounds, and subject to some minor fine-tuning, I will make the orders sought in paragraph 4 of the FANOM.

Evidence by audio-visual link

8. The earlier judgment dealt with a series of applications in relation to the manner in which the informant witnesses would give evidence. In particular, the earlier application sought orders that would hide the true identity of the witnesses from the accused (an application that defied common sense in the circumstances and was ultimately abandoned) as well as alternative orders that either (i) the witness should be permitted to give evidence by audio visual link (AVL) or (ii) the witnesses should be screened from the accused (and the accused screened from the witnesses). For reasons disclosed in the earlier judgement I rejected much of the earlier application but accepted that four of the witnesses should be permitted to give evidence via AVL: R v Qaumi &Ors (AVL).

9. However, I made it clear that the AVL order was only to prevail during the currency of the pre-trial hearing and would be revisited in the context of the trial proper. Different considerations arise at the two stages of the trial process. In particular, there is a concern that a jury’s ability to make important assessments as to demeanour and credibility of witnesses, a role that is central to its function, may be restricted if the witnesses do not give evidence in the court room. In spite of the supposedly advanced technology that exists in this courtroom, the reality of this was highlighted in the course of the Basha inquiry. On more than one occasion, it was difficult for the witness to see counsel and at times it was difficult to see and hear the witness. I was not called upon to make findings based around the demeanour of the witnesses in the Basha inquiry, but my observation was that the task would have been made considerably more difficult as a result of the deficiencies in the audio video facility. Further, there is a possibility, in spite of direction, that a jury may draw adverse inferences against the accused if witnesses do not give evidence in the usual way. Equally, a jury could form an adverse opinion of the witness themselves. In any event, it is necessary to re-consider, in light of what is now known, the question of whether any of the witnesses should be permitted to give evidence by audio-visual link.

10. The Commissioner, by its current application, does not seek an order that the witnesses give evidence in that fashion. However, the learned Crown Prosecutor reminded me that the application that had been brought both by the Commissioner and by the Crown for audio-visual link for those 12 witnesses remained extant and needed to be resolved. However, no further submissions were made. I set out in the course of the earlier judgment, the basis upon which it was submitted that it was in the interests of justice that the evidence be given in that way [1] and I also set out the relevant statutory provisions and legal landscape under which that decision was made. [2] The same statutory provisions apply and many of the same legal and factual issues arise in the context of the trial. However, as I have said, some of the considerations are different and, as I perceive it, neither the Crown Prosecutor nor the Commissioner presses the application for use of AVL with any force.

    1. R v Qaumi (AVL) at [50]-[71].

    2. R v Qaumi (AVL) at [27]-[44].

11. One of the benefits of the pre-trial procedure was that I was able to make assessments of the witnesses, observe the behaviour and attitude of the accused and obtain an understanding of the peculiar dynamics of this courtroom. As I said in the earlier judgement at [83], any misconduct on the part of the accused would have led me to reconsider the application that the witnesses give evidence by audio-visual link.

12. As I have remarked in the course of the trial, the behaviour of the accused while eight (of the twelve) informant witnesses gave evidence in the Basha inquiry (both live in the courtroom and by AVL) was exemplary. There was nothing in the demeanour of the accused or in their conduct to suggest that they were attempting to intimidate the witnesses or influence them in giving their evidence. Similarly, nothing in the demeanour of the witnesses suggested that they were intimidated by being present in the court room or that they were adversely affected or disadvantaged by giving evidence in the usual way. They appeared, to varying degrees, to be nervous and unaccustomed to the formality of the proceedings but this was no different to that which pertains to any witness called upon to give evidence in a large court case.

13. I have come to the conclusion that the application for the 12 witnesses to give evidence by audio-visual means, in so far as that application is extant or presently pressed, should be refused. Each of the witnesses will give evidence in the usual way by entering the courtroom and the witness box. I note the distance between the witness box and dock is significant and that these witnesses will enter the courtroom from the opposite side to the public gallery and to the accused in the dock.

14. Of course, this question will be revisited if there is any misconduct on the part of the accused or if a further application, based on new or additional evidence, is brought. Those comments and provisos are particularly important in view of an incident that occurred in the courtroom on Friday 12 February 2011. Without going into detail, on that date shortly before I came on to the Bench there was a physical altercation between two or more of the accused. Five of the accused were removed from the Court by officers of the Department of Corrective Services. In the aftermath of that incident a blade was found in the dock. That incident disrupted the Court for a couple of days while measures were considered that would ensure the safety of all of those participating in the court case. Ultimately, I received assurances that there would be no further disruption and the case resumed without incident. That incident had nothing to do with any particular witness but appeared to arise from a dispute between some of the accused persons. [3] However, it serves to highlight the volatile and potentially explosive nature of these proceedings and the need for the accused to be reminded that the orders I make will be influenced by their behaviour as the trial progresses. That comment applies to the orders as to the manner by which the witnesses will give evidence as well as the configuration of the court room and the use of the Perspex screen in front of the dock.

    3. Since this judgment was prepared in draft, one of the accused has pleaded guilty and offered to give evidence against some or all or the remaining accused. Different considerations may arise if an application is made in terms of the manner in which she is to give evidence.

Closure of the Court

15. There is more controversy surrounding the orders sought in paragraphs 5 and 6 of the FANOM which are in the following terms:

1. The Court be closed for the duration of the evidence given by the witnesses at trial, subject to the following being permitted to be present in the Court while they give evidence:

1. The accused persons and their legal representatives;

2. The prosecution;

3. Officers of the NSW Police Force involved in investigating the offences before the court;

4. Legal representatives of the Commissioner of Police;

5. Staff of the Department of Corrective Services and Sherriff’s Office;

6. Supreme Court staff, and

7. Employees of a news media organisation (meaning a commercial enterprise that engaged in the business of publishing news, or a public broadcasting service that engaged in the dissemination of news through a public news medium.

2. In the alternative to order 5, that admission to the Court during the giving of evidence by the witnesses referred to in Order 4 above at the trial be limited to accredited members of the media and those persons who have been registered as seeking admission to the Court room by the NSW Sheriff prior to entry.

16. Neither the Crown nor five of the six accused (Farhad, Mumtaz and Jamil Qaumi, Witness M and Mohammed Kalal) oppose the closure of the court or makes any submission as to the form of the orders sought in paragraphs 5 and 6 of the FANOM. In other words, they make no submission as to whether the Court should be closed for the duration of the evidence of the 12 witnesses.

17. However, counsel for Mr Zarshoy mounted a spirited and principled argument that the Court should remain open unless there are compelling reasons in the confidential material that justifies an order that the witnesses’ evidence should be given in camera. He says that the material in the open affidavit cannot justify closing the Court for what would be a substantial part of the trial. Similarly, the solicitor appearing for the media organisations stressed that unless there is clear and specific evidence to support the proposition that the orders were necessary (in particular arising from danger to the safety of the witnesses), the general policy of the law is that the Court should remain open. Implicit in the submissions of both Mr Driels and Ms Mullins was the fundamental importance that courts that operate in a democratic society should remain open to the public.

18. The Commissioner relied on the evidence in both the open and closed affidavits as well as the evidence that had been given in the earlier application. The judgment earlier given accepted the Commissioner’s submission that the Court should be closed for the evidence given by the witnesses in the Basha inquiry and on the voir dire. That decision was informed, at least in part, by the fact that there was a blanket non-publication order in relation to all of the evidence given on the voir dire. It was also predicated on the understanding that if members of the press or electronic media sought to be excluded from the operation of the court closure order I would hear an application for such exclusion. The order currently sought acknowledges the right of the media to be present by creating an exclusion for the person listed in paragraph 5 (a) – (g) of the FANOM. This includes “employees of news organisations”.

16. Returning to the question of whether the court should be closed to allow the 12 witnesses to give evidence in camera, it is important to commence from the fundamental proposition that one of the cornerstones of a court system within a functioning democracy is its openness to scrutiny and to members of the public. It is common for members of the public, including school and university students and others who simply have an interest, to come in and out of court rooms all across New South Wales. This happens on a daily basis. Any citizen, or visitor to Australia, can simply attend court proceedings and observe the judicial arm of government in operation. It is a hallmark of a free and democratic country. It has happened frequently throughout the course of the pre-trial hearing with the exception of those periods where the court has been closed.

17. It has been held on many occasions that a judge of a superior court - who unquestionably has an inherent power to order that parts of the evidence be heard in camera closure of the court - ought not to accede to an application for the closure of the court lightly. As French CJ said in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [20]-[21]:

"20. An essential characteristic of courts is that they sit in public: Daubney v Cooper (1829) 10 B&C 237 at 240 [109 ER 438 at 440]; Dickason v Dickason (1913) 17 CLR 50; [1913] HCA 77; Scott v Scott [1913] AC 417; Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J; [1976] HCA 23. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny: Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J. It is also critical to the maintenance of public confidence in the courts. Under the Constitution, courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard: Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 76 [64], 81 [78] per Gummow, Hayne and Crennan JJ; [2006] HCA 44. However, it is not absolute Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 359 [56] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [1999] HCA 9, adopting the remarks of Gaudron J in Harris v Caladine (1991) 172 CLR 84 at 150; [1991] HCA 9, referring to "limited exceptions" to the open and public inquiry involved in the exercise of judicial power.

21. It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court's inherent jurisdiction or an inferior court's implied powers. Inferior courts lack the "inherent jurisdiction" of superior courts, but have analogous implied powers: Grassby v The Queen (1989) 168 CLR 1 at 15-17 per Dawson J; [1989] HCA 45; John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at 354 [28] per Spigelman CJ, Handley JA and M W Campbell A-JA agreeing at 368. In federal courts created by statute, implied incidental powers also take the place of "inherent jurisdiction": DJL v Central Authority (2000) 201 CLR 226 at 240-241 [25] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; [2000] HCA 17; Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 618-619 per Wilson and Dawson JJ, 623-624 per Deane J, Mason CJ agreeing at 616, 630-631 per Toohey J; [1987] HCA 23. . This may be done where it is necessary to secure the proper administration of justice: John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477 per McHugh JA, Glass JA agreeing at 467. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could "cause an entire destruction of the whole matter in dispute: Andrew v Raeburn (1874) LR 9 Ch 522 at 523. See also Nagle-Gillman v Christopher (1876) 4 Ch D 173 at 174 per Jessel MR; Mellor v Thompson (1885) 31 Ch D 55; Scott v Scott [1913] AC 417 at 436-437 per Viscount Haldane LC, 443 per Earl of Halsbury, 445 per Earl Loreburn, 450-451 per Lord Atkinson, 482-483 per Lord Shaw of Dunfermline. Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer, the name of the blackmailer's victim, called as a prosecution witness, may be suppressed because of the "keen public interest in getting blackmailers convicted and sentenced" and the difficulties that may be encountered in getting complainants to come forward."

21. See also the comments of Hayne, Heydon, Crennan, Kiefel and Bell JJ at [85]-[88].

22. Similarly in John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344, Spigelman CJ said:

"18. It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial, is an essential quality of an Australian court of justice. There is no inherent power of the Court to exclude the public. (See Scott v Scott [1913] AC 417 at 473; Dickason v Dickason (1913) 17 CLR 50 at 51; Daubney v Cooper (1829) 109 ER 438 at 440; Russell v Russell (1976) 134 CLR 495 esp at 507 and 520-521, 532.) The taking of a verdict is something which occurs in the ordinary course of criminal proceedings. (See, e.g.Coulter v The Queen (1988) 164 CLR 350 at 356, 357 and cf 359-360, 362.)

19. It is also well established that the exceptions to the principle of open justice are few and strictly defined. (See, e.g. McPherson v McPherson [1936] AC 177 at 200; R v Tate (1979) 46 FLR 386 at 402.) It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any Constitutional constraints. (See, e.g. Dickason at 51; Russell at 520; John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 181 ALR 694 at [70]-[73].)"

23. I take the reference in paragraph 18 to there being no inherent power of the court to exclude the public to be a reference to the powers of a statutory court such as the District Court rather than a superior court. No party before me has suggested that a superior court does not possess the power to close the court and to order that evidence be taken in camera. However, the authorities repeatedly stress that such a course is an exceptional one and may only be invoked when it is necessary in the interests of justice to do so.

24. With those fundamental principles at the forefront of my mind, I turn to consider the basis of the application in the present case. There is a deal of evidence going to the question of the dangers that may arise if the witnesses give evidence in open court. Much of the evidence was before me on the earlier application, and set out in the earlier judgement, was concerned with the feelings of intimidation and fear based on the likely conduct of the accused. In view of the behaviour of the accused in the course of the pre-trial hearing, that evidence has to a degree fallen by the wayside. It is unnecessary therefore to repeat the various matters that were set out in paragraph [50]-[61] of the earlier judgment although I have taken into account the expressions of concern articulated by the witnesses in coming to a conclusion concerning the present application.

25. As I observed in the earlier judgment, the first basis upon which it might be considered necessary to close the court during the witnesses’ evidence is that, if the court remains open, associates of the accused who do not otherwise know the appearance of the witnesses might be in a position to see them and, subsequently, identify them if an attempt is made to seek reprisal or to influence them. A further concern is that people associated with the victims may also seek reprisal because the witnesses were involved in the commission of the subject crimes. In this regard, particular concern has been expressed by one or more of the witnesses that members of the Bankstown BFL (the victims of most of the counts on the current indictment) might be in a position to identify the witnesses. Thirdly, one of the witnesses (known as L) was subject to intimidation from the public gallery during the course of his sentencing hearing. As the sentencing Judge in that case, l am aware of the incident of which he complains: see R v NK (No 3) [2015] NSWSC 1257 at [109].

26. The Commissioner relies on observations made by the Court in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 where, in the context of the making of suppression and non-publication orders, the Court said:

"48. The broader concept of the administration of justice, including consequences not just for the present case but for future cases, including the supply of information from victims of unlawful conduct and the willingness of witnesses to give evidence, accords with the approach taken in this Court: see John Fairfax Group Pty Ltd (Receivers and managers appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 at 161 D-E (Mahoney JA, Hope AJA agreeing), approved in John Fairfax Publications Pty Ltd v District Court at [47] (Spigelman CJ, Handley JA and MW Campbell AJA agreeing) and in R v Kwok [2005] NSWCCA 245; 64 NSWLR 335 at [13] (Hodgson JA), [34] (Howie J) and [38]-[40] (Rothman J); see also Batistatos v Roads & Traffic Authority of NSW [2006] HCA 27; 226 CLR 256 at [12]. Each of these cases was dealing with the implied power of courts, operating prior to the commencement of the Suppression Orders Act, and each involved orders which impinged on the operation of the open justice principle."

27. The Commissioner submits that a failure to protect the witnesses in this case may discourage witnesses in future cases (or current ongoing investigations) from coming forward. I accept that this is a relevant and compelling consideration in certain circumstances but I am not persuaded that the evidence before me supports the proposition that a failure to close the court during the currency of the evidence of all of the witnesses will either place the witnesses in danger or discourage future witnesses to come forward.

28. One difficulty with the present application is that it essentially treats the witnesses as a “job lot”. In other words, with one or two exceptions, the evidence does not distinguish between the witnesses in terms of establishing the desirability, let alone necessity, to close the court. The fact is that different considerations exist in respect of the various witnesses. For example, the appearance of witness L is widely known as most of his sentencing hearing took place in public. For another, there is evidence before the Court that his image is readily available on the Internet. [4] Another example is that witness H is in a completely different category to the other witnesses. He was a member of the rival gang (the Brothers For Life at Bankstown) and is the alleged victim of one of the shootings. As far as I am aware, witness H has made no statement expressing any fears or concerns about giving evidence in open Court

    4. See affidavit in support of Notice of Motion for non-publication orders filed by Jamil Qaumi on 5 November 2015 (MFI 9).

29. There is evidence in the confidential affidavit that gives rise to particular concerns as to the safety of the witnesses both in terms of their own perception of their safety and because of information that has come to the attention of the Deputy Commissioner who swore the affidavits read in support of the FANOM. It is undesirable that I set out the detail in this judgment but I have taken into account all of that material and in particular those paragraphs to which Mr Lee took me in argument (i.e. paragraphs 10-11, 22-23, 25-28 and 31-55).

30. The general proposition being advanced on behalf of the Commissioner is that allowing the court to remain open (or, more correctly, failing to make an order closing the court) may potentially place the witnesses in some danger. As I understand the submission and the evidence adduced on the application, this danger arises if people with some malicious intention towards the witnesses may be assisted in carrying out their intentions by observing the witnesses and thereby obtaining knowledge of their present appearances.

31. With the exception of witness B, I am unable to accept the submission that it is necessary to close the court for the hearing of the witnesses’ evidence. I am far from convinced that allowing members of the public access to the court will have the undesirable effect of placing the witnesses in any further danger. I accept that the evidence establishes the potential for the witnesses to be subject to reprisal and I accept that if their current whereabouts is known that they are at serious risk of reprisal. But I am unable to accept that the giving evidence in a public courtroom increases that risk to any significant degree. Again I note, merely by way of example, that newspaper reports have depicted the appearance of at least one (and possibly more) of the witnesses in question. That material remains a readily available on the Internet.

32. The one exception to this finding concerns witness B. There is particular material in the confidential affidavit that leads me to a different conclusion in relation to his evidence. It is inappropriate to refer to that evidence but in my assessment it establishes that the Court should be closed when he is called to give evidence.

33. However, unless further evidence is placed before the Court in relation to the circumstances of individual witnesses, I am unable to conclude that it is necessary in the interests of justice for the remaining witnesses to give evidence in closed court and the court will, subject to further order, remain open throughout.

34. An alternative order sought by the Commissioner is that the order for closure of the Court might be subject to an exception for members of the public “who have been registered as seeking admission to the Court by the New South Wales Sheriff prior to entry.”

35. The precise and practical operation of this exception was not explained to me in any meaningful way. I was told that it was an order that had been made in another court case. When I enquired as to where and by whom such an order had been made, and whether there was a published judgement, I was informed that such an order (or something similar) was made by the State Coroner in the inquest into the deaths at the Lindt Café siege in December 2014. I have no trouble accepting that such an order may have been made in those proceedings. It may even be that such an order is authorised by the peculiar provisions of the Coroners Act 2009 (NSW) and justified by the subject matter of that inquest. On those issues I express no view. However, as a general proposition, the idea that members of the public would be required to identify themselves in order to obtain access to the courts is anathema to recognised concepts of open justice.

36. It was not clear to me whether it was being proposed that people seeking registration would somehow be vetted and on what possible basis such vetting might occur. If there was not to be vetting, it is difficult to see how the order had any capacity to protect the witnesses. If there was to be vetting, it highlights the intrusive nature of the proposal. It might also be that by registering the names of members of the public, there would be a capacity to investigate members of the public in the event that some incident occurred. All of these possibilities highlight, in my mind, the grave concerns that arise as a result of the suggestion that members of the public seeking access to the court should be asked to register before being permitted to enter.

37. Further, the fact that the Commissioner is prepared (even in the alternative) to permit members of the public to enter the court room provided they go through some non-specific registration procedure undermines the suggestion that the closure of the court is a necessary step. For instance, if a person with malicious designs on any of the witnesses sought to obtain information as to their appearance, they would need to do no more than register in order to obtain entry to the court and further advance their malevolent designs.

38. For those reasons, I will order that the Court be closed during the evidence of witness B but not otherwise.

Restriction on cross-examination

39. The final aspect of the application by the Commissioner is to restrict the cross-examination of the accused. The restrictions sought are of limited kind and, in the course of argument, most counsel representing the accused accepted that certain limitations might properly be placed on the cross-examination. In a nutshell, the Commissioner seeks to restrict cross-examination that might tend to identify whether or not a witness has been relocated.

40. I accept, based on the evidence in the open and, more particularly, the confidential affidavit, that the Commissioner’s application should be granted. It is based on the provision in s 130 Evidence Act which excludes evidence of matters of state. In particular it is based on the possibility that producing such evidence would “prejudice the prevention, investigation or prosecution of an offence.” There is in subsection (5) a non-exhaustive list of factors to be taken into account and I have done so. The ruling which I make in this regard will not prevent the accused from obtaining evidence, if it exists, that the informants were provided with benefits. However, it will preclude questions which will lead to the disclosure of whether or not a witness has been assisted in relocating either themselves or their family. In the course of the voir dire a similar concern was raised and Senior Counsel for Farhad Qaumi was able to fashion his questioning on this subject by using a preface to the effect of “leaving aside any financial assistances for relocation”.

41. I would not be so prescriptive as to suggest that counsel be bound by words and phrases such as that. However, I do accept the Commissioner’s application under s 130 and indicate that I will disallow any questioning of the informant witnesses that would disclose whether or not they have been assisted to relocate themselves or members of their family. I expect counsel to comply with this ruling or, if they seek to ask questions that might lead the witness to disclose such information, to raise the matter in advance to enable the Commissioner’s lawyers to be present to raise an objection.

Orders

42. Accordingly, I make the following orders:

1. For the purposes of these proceedings, including any other or further interlocutory applications conducted in connection with these proceedings, the proposed Crown witnesses who have given statements under the identifying pseudonym letters "A" to "L" inclusive (collectively referred to in these orders as "the witnesses"), shall each be referred to by the name recorded hereunder beside each said pseudonym letter (collectively, the “witnesses' names"):

1. Witness A

2. Witness B

3. Witness C

4. Witness D

5. Witness E

6. Witness F

7. Witness G

8. Witness H - Michael Odisho;

9. Witness I

10. Witness J

11. Witness K

12. Witness L

2. The names of the witnesses referred to in Order (1) be suppressed until further order of the Court pursuant to s 7 of the Court Suppression and Non-Publication Act 2010 (NSW), 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:

1. the order is necessary to prevent prejudice to the proper administration of justice;

2. the order is necessary to protect the safety of the witnesses;

3. the order is necessary in the public interest.

3. Publication of the witnesses' names be restricted until further order of the Court, pursuant to s 7 of the Act, to the respective pseudonym letters allocated to each witness in Order 1(a) to (I) above, on the grounds set out in Orders 2 (i) to (iii) above. (For the sake of clarity, this order relates to the witnesses named in Order 1 above).

4. Without limiting the generality of Orders 2 and 3 above, any description or depiction of the physical appearance or other identifying feature of any or all of the witnesses be suppressed until further order of the Court, pursuant to s 7 of the Act, except as might be necessary for the proper conduct of the proceedings, on the grounds set out in Order 2 (i) to (ii) above.

5. Pursuant to s 7 of the Act, and until further order, there is to be no publication of the evidence, information given about the evidence or submissions made in the pre-trial hearing on the ground that the order is necessary to prevent prejudice to the proper administration of justice.

6. Orders 2, 3, 4 and 5 above are to apply throughout the Commonwealth of Australia, pursuant to s 11 (2) of the Act.

7. All other non-publication and suppression orders, and exceptions and variations thereto, previously made are confirmed until further order.

8. The applications for directions under s 5B of the Evidence (Audio and Audio Visual Links) Act1998 (NSW) that witnesses A – L give evidence in the trial proceedings by audio visual link are refused.

9. Direct that the Court be closed during the evidence of Witness B subject to the following being permitted to be present in the Court while they give evidence:

1. The accused persons and their legal representatives;

2. The prosecution;

3. Officers of the NSW Police Force involved in investigating the offences before the court;

4. Legal representatives of the Commissioner of Police;

5. Staff of the Department of Corrective Services and Sherriff’s Office;

6. Supreme Court staff, and

7. Employees of a news media organisation (meaning a commercial enterprise that engaged in the business of publishing news, or a public broadcasting service that engaged in the dissemination of news through a public news medium.

10. Subject to order 9, the application for closure of the Court is refused.

11. Pursuant to s 130 Evidence Act1995 (NSW), I disallow any question in cross-examination of witnesses A – L and officers of the NSW Police Force that would disclose:

1. Details of the residential location and current employment details of witnesses A – L or any member of the family.

2. Whether or not the any of the witnesses A – L have been relocated and whether or not any monies have been provided to them for such relocations.

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Endnotes

Amendments

13 December 2016 - Witness M name redacted in paragraph [16]

13 December 2016 - corrected case name and file numbers in coversheet

Decision last updated: 13 December 2016