R v McCloskey (No 4)

1. [1]

   The New South Wales Commissioner of Police applies under the Court Suppression and Non-Publication Orders Act 2007 (NSW) that there be non-publication orders in relation to the phrase “Afghan boys” or similar references and in relation to the living arrangements of the witness identified as JK. The application was made orally on 29 July 2020.

1. The Afghan boys

1. [2]

   The Commissioner’s concern is that the tag “Afghan boys” will enable the identification of the witness QR. QR and his associates, Moey and AJ, are known to be a group reputed to be Afghani. That group is believed to be of some renown within the Rebels Outlaw Motorcycle Gang. The Commissioner submitted that the association of QR with that particular group more directly permits identification of QR than other information during the trial. The Commissioner submitted that this would undermine the objects of the orders made by Wright J on 19 September 2019 which were made having regard to what appear in paragraphs 45-51 of the confidential affidavit of Acting Assistant Commissioner Scott Whyte sworn 26 August 2019.

2. [3]

   When I enquired of counsel for the Commissioner if the concern was in relation to a forthcoming trial where QR has been charged, counsel informed me that the concern was in relation to what was identified in paragraphs 45-51 of Acting Assistant Commissioner Whyte’s affidavit.

3. [4]

   It was made clear to me at a directions hearing in March 2020 that consideration was being given by counsel for Mr McCloskey to calling QR as a witness in his case. In the result, QR was not called as a witness. That is a significant matter for the determination of the present application.

4. [5]

   For reasons more particularly set out in a confidential annexure to this judgment, which annexure will be published only to the Commissioner of Police, the Commissioner’s application in relation to the phrase “Afghan boys” or similar references is refused.

2. JK’s living arrangements

1. [6]

   The Commissioner drew attention to the fact that the particular living arrangements of JK were set out in the transcript at T344.47 and T345.11. In short, those references disclosed that JK lived with Mr McCloskey.

2. [7]

   The Commissioner submitted that those living arrangements would facilitate the identification of JK and, through him, AB. In particular, the Commissioner submitted that, when the information about JK’s living arrangements was combined with information as to JK’s occupation (which the Commissioner did not propose would be the subject of non-publication orders) it could enable the identification of JK, thereby undermining the objects of the orders made in relation to AB.

3. [8]

   One of the significant events about which both AB and Mr McCloskey gave evidence at the trial was a meeting held at a McDonald's near Sydney airport which was attended by AB, Mr McCloskey, Sami Hamalainen and JK. The accused gave evidence suggesting that the principal reason for the meeting was concerns he had about JK’s work performance. He said he wanted to discuss that with AB. AB was also cross-examined to suggest that that was the real purpose of the meeting rather than what the Crown contended through AB, namely, that it was a meeting for Mr McCloskey and Mr Hamalainen to arrange for the “boys” to travel to Batemans Bay to sort out the “Johnny issue”.

4. [9]

   There was abundant evidence from both AB and Mr McCloskey that JK, who was AB’s son, was Mr McCloskey’s apprentice. The Commissioner does not seek that there be any redaction in relation to that evidence. Indeed, it would not be feasible to do so.

5. [10]

   It cannot be sensibly concluded that the two references about JK’s living arrangements add anything of significance to all of the other evidence which clearly identifies him as AB’s son and Mr McCloskey’s apprentice.

6. [11]

   The Commissioner’s application in this regard is refused.