Citation: R v Qaumi and Ors (No 7) [2016] NSWSC 287
Court: Supreme Court of New South Wales
Date: 16 March 2016
Judge(s): Hamill J
Background
The accused Farhad Qaumi, along with a co-accused who had since pleaded guilty and was awaiting sentence, brought notices of motion seeking various documents and transcripts held by the New South Wales Crime Commission. The substantive ruling on that application was reserved for a later judgment.
As part of the process for dealing with the Crime Commission's claim to withhold material, the court adopted the procedure established in R v Francis and heard confidential submissions from Crime Commission counsel in closed court, with the accused and their legal representatives absent. That hearing took place on 1 March 2016 with the consent of all parties.
During and after that confidential hearing, complications arose. It emerged that some material had been disclosed to the accused by either NSW Police or the DPP in error, and that this had given rise to a mistaken belief among the accused's representatives about a particular registered source. The Crime Commission then raised concerns about references Hamill J had made in open court to certain items that had been marked for identification during the confidential hearing.
Legal Issues
- Whether documents and transcripts in the possession of the NSW Crime Commission should be disclosed to the accused
- Whether references made in open court to material tendered during a confidential hearing risked undermining the confidentiality of the Crime Commission's submissions
- Whether the exhibit and MFI list should be redacted to protect sensitive information concerning witnesses and Crime Commission proceedings
Decision
Hamill J found that the procedure in R v Francis, permitting closed-court hearings to allow the Crime Commission to make submissions in the absence of the accused and their representatives, was appropriate and had been properly applied. The substantive disclosure question remained reserved for a later judgment.
After the confidential hearing concluded, Crime Commission counsel withdrew an initial concession that certain marked items could be identified in open court. The Crime Commission expressed concern that even indirect references to tendered material might reveal the identity of a registered source and confirm or deny whether particular individuals had given evidence at the Crime Commission.
Hamill J acknowledged some of those concerns were "a little precious" but accepted they were genuinely held. His Honour was persuaded that, because the Crime Commission had made its submissions on the good-faith understanding they would remain confidential, the appropriate course was to refrain from making any further comment on the material in the presence of the parties. Hamill J noted that the open-court references already made had not identified specific page numbers or the names of the individuals involved, and therefore no damage had been done.
On the question of the exhibit and MFI list, Hamill J agreed to redact specific entries. MFI 66 would read "confidential [redacted]"; MFI 67 would read "transcript dated [redacted]"; and MFI 68 would read "pages [redacted]."
Orders Made
- MFI 66 to be relabelled as "confidential [redacted]"
- MFI 67 to be relabelled as "transcript dated [redacted]"
- MFI 68 to be relabelled as "pages [redacted]"
- No further disclosure or comment to be made in the presence of the parties regarding the material tendered during the confidential hearing
Key Takeaways
- The Supreme Court confirmed that the R v Francis procedure, permitting closed-court hearings to receive Crime Commission submissions in the absence of the accused and their legal representatives, remains available where parties consent.
- Where confidential submissions are made in good faith on the basis they will not be disclosed, a court may decline to make further reference to that material in open court even if earlier references were inadvertent.
- Inadvertent disclosure of material by the prosecution (here, apparently by NSW Police or the DPP) can give rise to mistaken beliefs about whether individuals have participated in Crime Commission proceedings, a complication courts must manage carefully.
- Redaction of exhibit and MFI lists is an available tool for protecting the confidentiality of sensitive material marked during closed-court hearings.
- No finding was made on the substantive question of whether the Crime Commission documents sought by the accused should be disclosed; that ruling was expressly reserved for a subsequent judgment.
Legislation and Cases Referenced
Cases:
- R v Francis [2004] NSWCCA 85; (2004) 145 A Crim R 233
Legislation:
- No specific legislation was cited in the decision.