R v Qaumi and Ors (No 7)

The accused Farhad Qaumi and AC, who was formerly an accused and is now technically an offender awaiting sentence, each sought by notice of motion various documents and transcripts said to be in possession of the New South Wales Crime Commission.

There will, in due course, be a judgment in relation to that application but for present purposes, it need simply be said that by agreement between the parties and in accordance with the procedure adopted in cases such as R v Francis [2004] NSWCCA 85; 145 A Crim R 233 at [21], part of the argument was held in closed court and in the absence of the accused and their legal representatives. That occurred on 1 March 2016 and, as I say, it was with the consent of the parties to enable me to hear submissions from counsel representing the Crime Commission in which she could speak freely and equally I could ask her direct questions.

In the course of that confidential hearing, a number of documents were tendered or marked for identification. That included a transcript of the pre-trial hearing which took place before me on 4 December 2015, as well as certain pages from the brief of evidence that has been served upon each of the accused. There was also marked for identification (MFI 66) a lever arch folder containing transcript of evidence given at the Crime Commission. Both counsel for the Crime Commission and I have been careful in any public hearings on this issue not to give away the fact (as it is) that certain witnesses have in fact given evidence at the Crime Commission.

It also has become clear in the course of hearing the confidential submissions that certain information conveyed to the accused by way of disclosure by either the New South Wales Police and/or the Office of the Director of Public Prosecutions probably, if not assuredly, ought not to have been disclosed. That, it seems, was as a result of an error. [I also note that some of the disclosure has led the accused to the erroneous belief that certain witnesses gave evidence at the Crime Commission when, in fact, they did not.]

In Court this morning, when the parties were present, I made reference to the fact that there was a transcript that had become MFI 67 which was, as I put it “clearly not a confidential document” and I went on to say:

Ms England, who appears for the Crime Commission, initially agreed with that proposition and said:

It appeared that either her instructing solicitor from the New South Wales Crown Solicitor’s Office or those present in court from the Crime Commission considered that it was inappropriate to make reference to the material that had been tendered in the course of the confidential hearing.

As a consequence of those concerns, I heard further submissions in the absence of the accused and their legal representatives and whilst I frankly think that some of the concerns expressed are a little - and I hesitate to use the word - precious, I am persuaded that the concerns are genuinely held and that, at the very least, the Crime Commission having made submissions in good faith in the understanding that they would be made in a closed court and not in any sense disclosed to the parties, ought to be protected by not making any further disclosure or comment in the presence of the parties.

The basis of the argument otherwise was that by disclosing the pages of the brief that had been disclosed, it would thereby highlight, in particular, a person who has, it seems, been a registered source and who, because of an inadvertent disclosure by the police, the accused’s representatives are under the misapprehension has given evidence at the Crime Commission. As my subsequent judgment will explain, he never has given evidence at the Crime Commission, at least on relevant subjects. At least that is what I am told and accept.

Accordingly, in terms of a solution to the problem as it is perceived to be by the Crime Commission, I will accede to their request simply to say nothing further, noting in particular that any reference I made to the material did not identify either the page numbers of the brief or the names of the individuals in question.

In terms of the pages in the brief, there was reference in the course of arguments in open court to a number of pages in the brief, some of them included in MFI 68, some of them involving the particular witnesses in question, that is Mumtaz Qaumi and Mohammed Hamzy, but also reference to disclosures in the brief concerning other witnesses expected to give evidence in the trial, including those that go by the letters “I” and “J”.

It would seem, having now reviewed the transcript and heard further submissions in closed court, that no damage has been done and that the best course is that proposed by the Crime Commission, which is simply to say nothing further about it.

I am also asked to make certain redactions to the exhibit list and MFI list and, in particular, in relation to (i) MFI 66, which I will change to simply read “confidential” and then the word “redacted”, (ii) MFI 67, which I will have recast as “transcript dated redacted”, and MFI 68, which I will simply have recast as “pages redacted”.