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Supreme Court 30 March 2016

R v Qaumi & Ors (No 13)

[2016] NSWSC 337

Other
CRIMINAL LAW INFORMANT WITNESSES SUPPRESSION AND NON PUBLICATION ORDERS PSEUDONYM ORDERS

Citation: R v Qaumi & Ors (No 13) [2016] NSWSC 337
Court: Supreme Court of New South Wales
Date: 30 March 2016
Judge(s): Hamill J

Background

This decision arises from a large criminal trial involving five remaining accused. A sixth accused had pleaded guilty to two offences on 3 March 2016 and subsequently offered to give evidence for the prosecution against the others. The former accused became a Crown witness and is referred to throughout as "witness M."

The Commissioner of Police applied by notice of motion dated 15 March 2016 for orders protecting the identity and safety of witness M. At the time of the application, witness M was on bail, but bail was refused on 29 March 2016 and she was taken into custody. Sentencing proceedings were part-heard before Hamill J.

The application was heard against a backdrop of serious security concerns that had emerged during a lengthy pre-trial hearing running from November 2015 to March 2016. Hamill J had already made suppression, non-publication, and pseudonym orders for twelve other informant witnesses (witnesses A to L) in earlier decisions.

  • Whether suppression and non-publication orders protecting the identity of witness M were warranted under the Court Suppression and Non-Publication Orders Act 2010 (NSW)
  • Whether the courtroom should be closed to the public during witness M's evidence at trial
  • Whether restrictions on cross-examination of witness M were appropriate to prevent disclosure of her whereabouts or those of her family

Decision

Hamill J was satisfied that suppression and non-publication orders were necessary on three grounds under the Court Suppression and Non-Publication Orders Act 2010: to prevent prejudice to the proper administration of justice (s 8(1)(a)); to protect the safety of the witness (s 8(1)(c)); and because the public interest in making the orders significantly outweighed the public interest in open justice (s 8(1)(e)). The legal principles applied were consistent with those set out in the earlier judgments in R v Qaumi & Ors (AVL) and R v Qaumi & Ors (No 9). Both open and closed affidavits were tendered in support of the application. No party opposed the orders.

Two specific incidents during the pre-trial hearing reinforced the safety concerns. An exchange of abuse occurred across the dock between witness M and one or more of the accused. In a separate incident, a physical fight broke out among some accused and a razor blade was subsequently found in the dock, with its origin remaining under investigation.

On the question of court closure, Hamill J declined to make an order closing the court to the public for the trial proper at this stage. The judge was not satisfied that the circumstances were sufficiently compelling, noting that witness M had participated openly in proceedings while on bail from November through to March and had reportedly faced threats throughout that period. The decision on court closure for the trial proper was reserved until after sentencing, when more would be known about the length of the sentence, the nature of witness M's custodial conditions, and her security arrangements.

Hamill J also made orders restricting certain lines of cross-examination that could reveal the whereabouts of witness M or her family. None of the accused opposed those restrictions.

Orders Made

  • The court is to be closed to the public during any pre-trial Basha inquiry involving witness M.
  • The decision on whether the court will be closed during the trial proper is reserved until after witness M has been sentenced.
  • Existing orders from R v Qaumi (No 9) were varied to extend pseudonym and suppression protections to witness M (designated "witness M"), adding her to the existing framework covering witnesses A to L.
  • Orders restricting cross-examination of witness M on matters that could disclose her whereabouts or those of her family were made.

Key Takeaways

  • Under the Court Suppression and Non-Publication Orders Act 2010 (NSW), suppression and pseudonym orders can be extended to a former co-accused who pleads guilty mid-trial and becomes a Crown witness, where sufficient evidence of safety risk exists.
  • Physical security incidents occurring in the courtroom dock, including an altercation and the discovery of a razor blade, were treated as relevant factors heightening the basis for protective orders.
  • Court closure orders require a higher threshold of compelling circumstance and are not automatically granted alongside suppression orders, even where serious safety concerns are established.
  • A reserved decision on court closure during the trial proper was tied to developments that would become clearer after sentencing, including custodial conditions and security arrangements, leaving the Commissioner and the Director of Public Prosecutions free to renew the application at that stage.
  • Where protective orders are sought for informant or vulnerable witnesses, both open and closed affidavit material may be relied upon, with the closed material informing the court's satisfaction without being disclosed in the published judgment.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 8(1)(a), 8(1)(c), 8(1)(e)

Cases:
- R v Qaumi & Ors (AVL) [2015] NSWSC 1711
- R v Qaumi & Ors (No 9) (Court Closure) [2016] NSWSC 171