R v Qaumi & Qaumi (No 7) [2016] NSWSC 1729

Supreme Court New South Wales

Medium Neutral Citation: R v Qaumi & Qaumi (No 7) [2016] NSWSC 1729 Hearing dates: 05 December 2016 Date of orders: 05 December 2016 Decision date: 05 December 2016 Jurisdiction: Common Law Before: Hamill J Decision: The New South Wales Crime Commission is excused from producing documents pursuant to paragraph 1 of the subpoena issued on 28 November 2016. Catchwords: CRIMINAL LAW – subpoena to NSW Crime Commission – whether legitimate forensic purpose – claim for public interest immunity – balancing exercise – no question of principle. Cases Cited: R v Qaumi & Qaumi (No 5) [2016] NSWSC 1537 Category: Procedural rulings Parties: Regina Farhad Qaumi Mumtaz Qaumi New South Wales Crime Commission Representation: Counsel: K McKay (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami) R Bhalla with R McIlwaine (for Crime Commission)

Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten & Co (M Quami) NSW Crown Solicitors Office (for Crime Commission) File Number(s): Farhad Quami - 2014/6809; 2014/315201; 2014/315252 Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260

EX TEMPORE Judgment (REVISED) 1. A subpoena was issued to the New South Wales Crime Commission following its disclosure that certain material had come to its attention which may have some relevance to the current trial proceedings. Its disclosure was to the Director of Public Prosecutions and was in the context of me having made a comment as follows: "I accepted the submission of Senior Counsel that evidence that other people may have had a motive to kill Joseph Antoun is evidence that has the capacity to impact on the likelihood or probability that the two accused were involved in a joint criminal enterprise to murder Mr Antoun." [1] 1. The Commission quoted that and then indicated in its letter to the Director of Public Prosecutions, which is known to the accused and their legal representatives: "As you are aware, the Commission receives information from confidential human sources. In light of his Honour's comments set out above, the Commission advises that it has received information from confidential sources over the past week which includes information about the murder of Joseph Antoun." 1. The Commission went on to indicate if further details were required, it would make a claim for public interest immunity. The defence in the present trial issued a subpoena seeking that information and, true to its word, the Crime Commission raises a claim of public interest immunity. 2. The claim for public interest immunity is supported by an open affidavit of Mr O'Connor of 1 December 2016 which has annexed to it the subpoena and the aforementioned letter making the disclosure to the Director of Public Prosecutions. It also has annexed to it two confidential exhibits, the details of which I am unable to go into unless I form the view that the material sought under the subpoena should be produced or, rather, that access be granted to the parties in the trial. I have come to the opposite conclusion and so I must be guarded in the way that I explain my reasons. 3. Having perused the material produced in those confidential exhibits, I am satisfied that they have some relevance to the case both that the Crown is conducting but also that each of the accused is conducting from the manner of their cross-examination of various witnesses, including family members of the deceased, Joseph Antoun, and police officers involved in the investigation. That cross-examination has sought to establish that there are a number of other people, who are in one way or another associated with Mr Antoun, had a motive to do him harm and indeed to murder him. 4. More specifically, as the case has developed through the evidence of Witness L and Witness M, a more specific case theory has been advanced through the cross-examination. That case theory is to the effect that Witness M engaged Witness L to carry out the shooting and that Witness M was acting on behalf of or with a man Pasquale Barbaro, who was shot dead a few hours after his name was mentioned in this courtroom a couple of weeks ago. That unhappy incident has been subject to a great deal of media reporting and some little evidence in this court case. In any event, that has been the more specific case theory advanced, at least in the latter part of the trial, as Witnesses L and M were cross-examined. 5. As I say, having perused the material produced, it is relevant. There is a legitimate forensic purpose in the accused seeking access to it. Having said that, the nature of the material, both in terms of its form and content, is such that it is unlikely that the evidence would, if disclosed to the defence, be admissible in its present or similar form. It involves people's opinions, assertions, some hearsay, and its admissibility in a trial would be questionable, albeit that it does have relevance to the case theories that are being advanced on behalf of the accused. That consideration is relevant if I come to the balancing exercise, which would be the third step of the process if I uphold the claim for public interest immunity. I do uphold that claim. 6. As is asserted in the open affidavit and in the open submissions, there is concern that if the documents were released and made public, or even simply access is granted to the Crown and to the accused in accordance with the subpoena, there would be an identification of confidential human sources, the possibility of jeopardising ongoing investigations and possibly risking the safety of human sources. That is the assertion made in the open affidavit at paragraph 8. 7. It is not necessary for me in these short reasons to go into the public interest in maintaining the integrity of ongoing investigations, or to go into any detail as to the "informers' rule" as it is sometimes called; but not only is there a public interest in protecting the safety of individual witnesses or informants or sources, but also such sources and information would quickly dry up if it were understood by those approached by people like detectives or people who go to the Crime Commission or are summonsed to attend to give evidence there that their identity may later be disclosed. 8. It is not as simple as editing the documentation to redact the names of the people involved because it is possible that the substance of what is said may itself identify the informants and so I am satisfied that the public interest immunity claim is one that is well made. 9. It is necessary then to turn to balancing the public interest in maintaining that confidentiality as against the public interest that the accused receive a fair trial and that the Crown has access to all of the information that it would need to establish the case. 10. As I have already said in referring to the relevance and legitimate forensic purpose, whilst the material has relevance, its form and content is such that it may not have any great probative value even if it were made available to the accused. In reaching that conclusion, I also take into account the respective cases of the parties, including the fact that the now deceased Mr Barbaro plays a role on both the Crown theory of the case and also the defence theory of the case. There is at least some evidence from a family member of Joseph Antoun that Mr Barbaro wished Mr Antoun ill and also evidence from Witness L that one or other or both of the accused had made observations or comments to him after the murder that suggested that he may have had some role, along with the man Les Elias, in contracting for the murder of Joseph Antoun. 11. I take into account those respective case theories, as well as the nature and substance of the material. I come readily to the conclusion that the public interest in maintaining the confidentiality outweighs, by a fair margin, the need for it to be disclosed or the desirability for the material to be disclosed to the parties in the criminal trial. 12. I will simply note that in reaching that conclusion, I have considered, in particular, and accept, what is contained in paragraphs 13, 14, 17 and 18 of the confidential affidavit. 13. Accordingly, I order that the New South Wales Crime Commission is excused from producing documents pursuant to paragraph 1 of the subpoena issued on 28 November 2016.