Supreme Court New South Wales Medium Neutral Citation: R v Qaumi & Ors (No 50) [2016] NSWSC 1036 Hearing dates: 27 July 2016 Date of orders: 27 July 2016 Decision date: 27 July 2016 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: 1. The witness who has provided a statement served in the brief of evidence under the assumed name "XX" to be referred to as "XX" for the purposes of the hearing of this motion. 2. The witness XX("the witness") be allowed to appear before the Court at the hearing of these proceedings under his assumed name. 3. The witness be otherwise referred to as "XX" during the course of the hearing, during the course of any other or further interlocutory proceedings conducted in connection with these proceedings, in any published judgments of the Court and for all other purposes of these proceedings. 4. There is to be no disclosure of the real identity of the witness or of any document or evidence that identifies, or might facilitate the identification of, the real identity of the witness, except as is necessary for the proper conduct of the proceedings. 5. There is to be no publication of the assumed identity of the witness or of any document or evidence that identifies, or might facilitate the identification of, the assumed identity of the witness, except as is necessary for the proper conduct of the proceedings. 6. Without limiting the generality Orders 6 and 7, there is to be no disclosure of any visual or other description or depiction of the physical appearance or any other identifying feature of the witness, except as is necessary for the proper conduct of the proceedings. 7. In the event that order 7 is made, pursuant to the Court Suppression and Non-Publication Orders Act 2010, it is to apply until further order of the Court. 8. In the event that order 7 is made, pursuant to the Court Suppression and Non-Publication Orders Act 2010, it is to apply throughout the Commonwealth. 9. Orders made pursuant, to the Court Suppression and Non-Publication Orders Act 2010 are made upon the grounds set out in ss 8(1)(a), (c) and (e) of that Act. Catchwords: CRIMINAL LAW –audio link – non-publication orders – undercover police officer – assumed identity –XX. Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) Cases Cited: 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) G Clarke (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: No publication until the conclusion of the trial. EX TEMPORE Judgment 1. The accused require a witness known as XX to be called for cross-examination. XX is an undercover police officer and has an assumed identity under the provisions of the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW). 2. The New South Wales Commissioner of Police seeks a number of orders designed to protect his identity and safety. The orders are set out in a notice of motion filed in Court this afternoon and the notice of motion is supported by an open affidavit of Deputy Commissioner Lanyon and a confidential affidavit of the same senior police officer. 3. Two of the orders sought involve the use of an audio visual link and the use of screens to be placed in the courtroom or in the remote location in such a way that the accused would not be able to see the witness. There are a number of other orders sought to prevent disclosure of information leading to XX's identity. Neither the Crown nor any of the accused object to such orders. 4. The witness has never met any of the accused men in person and it seems that they do not know what he looks like. There is material, particularly in the closed affidavit that supports the proposition that that should remain the situation. Obviously enough I cannot detail that information here. 5. The parties agreed that one solution was to make an order under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) that the witness gives evidence by audio link. Section 5B provides that the Court may, of its own motion or on an application by a party, make a direction: "That a person, whether or not a party to the proceedings, give evidence or make a submission to the Court by audio link or audio visual link from any place within or outside of New South Wales." 1. Sub-section (2) provides four circumstances in which a court "must not make such a direction". None of those circumstances arise here. 2. Sub-section (3) requires the Court to be satisfied that it is in the interests of the administration of justice to make the order, only applies if one of the parties opposes the giving of a direction. In this case, no party opposes making the direction. Accordingly, there is a true discretion as to what appropriate orders should be made. 3. It is unclear at this stage why the witness is required to be available for cross-examination. As I understand it, the only interaction he had with any of the accused men occurred over the telephone and that those calls were recorded by telephone intercept. However, it does seem that he may have had contact with at least one of the informant witnesses (Witness A) and presumably the questions will be directed to that area and to other aspects of the police investigation. In any event, the Crown accepts that he should call the witness to make him available for cross-examination. 4. There is no suggestion by any party that counsel, the jury or myself will need to see the witness in order to assess his demeanour. In my opinion, it is better that he give evidence by audio link rather than by audio visual link. If the latter course was adopted and screens were installed to stop the accused from seeing him, those steps would be obvious to the jury and that has at least some small capacity to cause prejudice to the accused men. 5. Directions to the jury as to why the witness is not visible to anybody in the courtroom can be uncomplicated and uncontroversial, while explaining why the witness is being screened from the sight of the accused has a capacity to embarrass them, that is the accused. 6. Accordingly, pursuant to s 5B(1) of the Evidence (Audio and Audio Visual Links) Act, I direct that the witness known as XX is to give evidence by audio link. 7. I am also satisfied by the material set out in the affidavit, particularly the confidential affidavit, that the provisions in s 8(1)(a), (c) and (e) of the Court Suppression and Non-publication Orders Act are established. The affidavits set out the nature of an undercover operative's work and the importance of that work. The open affidavit explains that if an operative's cover is blown, it is necessary to withdraw him or her from the field and may lead to safety concerns, both to the officer and to their relatives. Accordingly, I am satisfied that the orders sought on behalf of the Commissioner are, (a), necessary to prevent prejudice to the proper administration of justice, (c), necessary to protect the safety of the witness and his family and, (e), otherwise necessary in the public interest and that that public interest significantly outweighs the public interest in open justice. 8. In view of the fact that XX will not be able to be seen by anybody in the courtroom, I am not satisfied that it is necessary to close the Court, as was originally sought in prayer 9 of the notice of motion. That prayer is not currently pressed, although the possibility exists that it may be renewed depending on who is present in the Court when XX comes to give evidence. 9. As I have previously said in R v Qaumi & Ors (No 9) (Court Closure) [2016] NSWSC 171, the desirability that criminal courts be conducted in public is one of the most important aspects of open justice. 10. Accordingly, I make the following orders in accordance with prayers 3, 4, 5, 6, 7, 8, 12, 13 and 14 of the notice of motion. 11. The Court makes the following orders: 1. The witness who has provided a statement served in the brief of evidence under the assumed name "XX" to be referred to as "XX" for the purposes of the hearing of this motion. 2. The witness XX ("the witness") be allowed to appear before the Court at the hearing of these proceedings under his assumed name. 3. The witness be otherwise referred to as "XX" during the course of the hearing, during the course of any other or further interlocutory proceedings conducted in connection with these proceedings, in any published judgments of the Court and for all other purposes of these proceedings. 4. There is to be no disclosure of the real identity of the witness or of any document or evidence that identifies, or might facilitate the identification of, the real identity of the witness, except as is necessary for the proper conduct of the proceedings. 5. There is to be no publication of the assumed identity of the witness or of any document or evidence that identifies, or might facilitate the identification of, the assumed identity of the witness, except as is necessary for the proper conduct of the proceedings. 6. Without limiting the generality Orders 6 and 7, there is to be no disclosure of any visual or other description or depiction of the physical appearance or any other identifying feature of the witness, except as is necessary for the proper conduct of the proceedings. 7. In the event that order 7 is made, pursuant to the Court Suppression and Non-Publication Orders Act 2010, it is to apply until further order of the Court. 8. In the event that order 7 is made, pursuant to the Court Suppression and Non-Publication Orders Act 2010, it is to apply throughout the Commonwealth. 9. Orders made pursuant, to the Court Suppression and Non-Publication Orders Act 2010 are made upon the grounds set out in ss 8(1)(a), (c) and (e) of that Act. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2016