R v Qaumi and Ors (No 11) (s 45 Crime Commission Act)

The accused Farhad Qaumi and Witness M (who was an accused person at the time but has since entered a plea of guilty) moved on separate notices of motion for orders pursuant to s 45(4) and 45(5) of the Crime Commission Act 2012 (NSW) (‘the Act’).

Farhad Qaumi sought an order in the following terms:

As a result of the order that I made severing the count on the indictment relating to the murder of Joseph Antoun (“the Antoun trial”), Senior Counsel for Farhad Qaumi did not press item (a) in the list of articles sought under the order. The Antoun trial is to proceed after the trial relating to the murder of Mahmoud Hamzy and other related shooting offences (‘the current trial’) and whether the accused brings a separate application in relation to the Antoun trial will be a matter for him. Further, the call in relation to the evidence of Mohammed Hamzy was limited to evidence (if any) concerning the murder of Mahmoud Hamzy.

The notice of motion on behalf of Witness M sought:

In the course of argument on 29 February 2016, the solicitor appearing for Witness M did not press the order in relation to evidence (if any) given by Mohammed Hamzy. Witness M then pleaded guilty on 3 March 2016. Witness M’s application was subsequently abandoned in the course of a detention application brought by the Crown following Witness M’s change of plea. [1]

Section 45 of the Act is in the following terms:

With the exception of that part of the notice of motion purporting to catch evidence (if any) given by Mohammed Hamzy, the Crime Commission consented to orders pursuant to s 45(4) in relation to evidence (if any) caught by the Notices of Motion. In other words, the Crime Commission agreed that the material should be produced to the Court pursuant to a certificate that “the court considers that it may be desirable in the interests of justice that particular evidence given before the Commission in relation to which the Commission has given a direction under this section be made available to the person or to a legal practitioner representing the person and to the prosecutor” (my emphasis).

In accordance with that concession I granted a certificate under s 45(4) on 24 February 2014. Pursuant to that certificate, and with the consent of the legal practitioners for Farhad Qaumi and Witness M, the Crime Commission agreed to produce to me in chambers the material (if any) caught by the notices of motion. Any such material is confidential.

The Crime Commission objected to any orders under s 45(5) and read an open affidavit of Timothy James O’Connor (MFI 64). I also received, without objection, two confidential affidavits by Mr O’Connor. One was sworn on 29 February 2016 (confidential MFI 63) and the second sworn 2 March 2016 (confidential MFI 71).

I note in passing that during the course of all of the argument in relation to these applications the learned Crown Prosecutor, his co-counsel and their instructing solicitors absented themselves from the court room. Transcripts of the arguments have not been provided to them. For those familiar with recent High Court authority, the reasons for this would be obvious: see X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92, Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 and Lee v The Queen [2014] HCA 20; 253 CLR 455.

I initially heard submissions in relation to the notices of motion on 29 February 2016. Those submissions were made in the presence of the accused and their lawyers. On 1 March 2016 I heard further submissions from Ms England who appeared for the Crime Commission. Those submissions were taken when the Court was completely closed both to the public and to the parties (a “fully closed court”). As undesirable as such a procedure may be, [2] particularly given the seriousness of the charges faced by the applicants, it is a necessary if rarely invoked procedure where matters of state and matters involving a high degree of confidentiality are involved. Authority for such a procedure can be found, for example, in the case of R v Francis [2004] NSWCCA 85; 145 A Crim R 233 at 21.

Further arguments were heard (in the absence of the Crown Prosecutor but in the presence of the accused and their lawyers) on 2 March 2016. I then heard further submissions in a fully closed court on Thursday, 3 March 2016 and Wednesday, 16 March 2016.

I have considered the material in the confidential affidavit as well as the material (if any) produced by the Crime Commission.

It is impossible, or inappropriate, to articulate the reasons for the conclusions I have reached in a judgment that is either published or made available to the legal representatives or the accused themselves. That is the nature of the application and because of the private and secretive nature of hearings and interrogations conducted by the Crime Commission. However, in order that this decision is amenable to appeal, I will record the reasons for the decision that are specific to this case in a separate and unpublished annexure.

These more general observations are simply designed to indicate what I consider to be some of the relevant factors to be taken into account when considering an application under s 45 of the Act.

The first and perhaps most important consideration concerns the fundamental right of an accused to a fair trial. Dealing with relevantly identical provisions in Chapman & Anor v Gentle & Ors (1987) 28 A Crim R 29, Yeldham J said (at [32]-[33]):

It is impossible to define in advance or with any degree of prescience or precision the matters that may be relevant to a determination of an application such as the present. Sub-section 45(5) requires the Court to make a determination of what “the interests of justice so require”. That is a quite stringent test but, in its context, the word “require” does not have the meaning of imperative as might often be the case. A similar approach was taken by Hall J in Muir v The Council of Trinity Grammar School [2005] NSWSC 555, a case involving a consideration of what the interests of justice required in determining whether a civil case should be heard by a jury. His Honour at [16] set out a series of dot-points including:

“In context, the term require is not equivalent in, in my opinion, to necessity or the concept inherent in the word essential. It must be accepted that a judge alone is capable of hearing and determining any form of civil proceedings including, in particular, any common law claim. Accordingly s.85(2)(b) implicitly involves a broader concept than capacity to determine a claim and allows for the identification of particular matters that constitute a substantial reason or warrant for departing from the normal method or mode of trial.”

However, the provision does set a relatively high bar for an applicant who seeks release of the material. This is so for a number of reasons, not least of which is the fact that the provision will only come into effect if the Commission has made a direction under s 45(1) that the relevant evidence must not be published. Accordingly, in any case where an application is made under s 45(4) or (5), the status quo will be that the evidence is not to be released. However, the section creates a proviso to that status quo which allows the Court to inspect the relevant transcript if it “may be desirable in the interests of justice” and then, if the “interests of justice so require”, the Court may make the evidence available to the legal practitioner representing the accused and to the prosecutor. The addition of the words “and the prosecutor” came in the aftermath of the decisions in X7 v Australian Crime Commission and Lee v New South Wales Crime Commission.

The expression “interests of justice” is a phrase of very wide import which allows a wide number of considerations to be taken into account. In O'Hare v DPP [2000] NSWSC 430 in which O'Keefe J said at [47] - [49]:

Similarly, in Muir v Counsel of Trinity Grammar School, Hall J said at [10] that the expression “interests of justice” is a broad one and is one that enables all relevant factors to be taken into account. His Honour referred to the decision of the Full Federal Court in Acton Engineering Pty. Limited v Campbell [1991] FCA 469; 103 ALR 437 where s 44 of the Corporations Acts was under consideration. Black CJ said at 440:

Davies J said further at 441:

As I have said, the interests of justice is not a phrase that can be defined by means of criteria in advance of any particular case. However, where the power under s 45(5) of the Act is invoked, there are a number of factors that may arise and might inform the exercise of the discretion granted to the court to make a determination as to what the interests of justice “require”. Without suggesting that the following is an exhaustive catalogue of the matters that might arise, the following are examples of the kind of factors pertinent to the determination under s 45(5).

As emphasised in Chapman v Gentle the “paramount consideration” is that the accused person should have a fair trial. However, the Court will generally start from the proposition that the evidence was given in private and is subject to an order that the evidence must not be published. The witness who gave the evidence will probably have been told at the commencement of the hearing that the evidence that they give will not be published. That creates in the witness a reasonable expectation that the things that they say are said in private and that the material will not be published. That is a relevant factor in determining where the interests of justice lie.

Next, it will be relevant whether the witness in question is likely to be a witness in the trial proceedings. That is an important factor but it is not determinative. For example, a Judge who inspects the material following the granting of a certificate under s 45(4) may become aware of the existence of a person who, while not a witness, may be in a position to give important evidence or provide important information either to the prosecution or to the defence. However, in cases where it is known that the witness at the Crime Commission is to be a prosecution witness in the trial, that will be a factor militating in favour of a finding that the interests of justice require the release of material. If the evidence before the Crime Commission is patently inconsistent with the evidence that is expected to be given by the witness in the trial, and the trial evidence expected to be inculpatory, that again will militate – in some cases, strongly – in favour of release of the material to be defendant.

If a witness to the Crime Commission is not expected to be a witness in the trial but where their evidence may contain important exculpatory information, or give rise to theories of the case that may not be readily apparent to the defence or prosecution, that will be a factor militating in favour of release of the material.

If the release of the material may place the witness in physical danger, that is a very strong factor militating against making an order under s 45(5). That is particularly important in cases where the witness may be seen to be an informant or has provided information inculpating known or suspected criminals. It is well known that such witnesses may be the target of reprisals. Expressions of fear by the witness in the course of their Crime Commission testimony will be a factor militating against the release of the material.

Where it is known (and generally the transcript before the Commission will make this clear) that the witness has been compelled to give evidence over objection, there may be a greater reluctance to release the material. However, compulsion such as that is not an uncommon feature of Crime Commission evidence and it is not a determinative factor. Rather, it is another matter to be taken into account amongst the many other circumstances that might inform a proper and principled assessment of the interests of justice.

It may also be that the Judge forms the view that the evidence is so fanciful or lacking in credit that its release to the defendant or the prosecutor will not be in the interests of justice. However, a Judge called upon to make a determination under sub-s (5) will be cautious in attempting to form such opinions based on the transcript alone.

The more central to the facts and allegations to be litigated in the trial proceedings the more likely it will be that the interests of justice will require release of the transcript of evidence. Matters which are merely on the periphery of events are unlikely to overcome the potential damage that release of the material may do. That damage may come in the form of danger to the witnesses or in interfering with the processes of the Commission’s work. Where the subject matter of the testimony is central to an important issue in the trial, it is more likely that a Judge will form the opinion that the release of the material to the defendant and to the prosecutor is in the interests of justice.

Another relevant factor is whether a witness who gave evidence before the Crime Commission consents to the release of their evidence. Such consent is not determinative as the Crime Commission may oppose the release of the material for reasons beyond the knowledge or care of the witness. Similarly, an objection by the witness to the release of the evidence is a relevant consideration but not a determinative one.

The factor referred to in the preceding paragraph raises a practical consideration when an application under s 45(4) and s 45(5) is brought. A witness whose evidence is subject to such an application has a right to be heard, at least in opposition to an order under s 45(5). This raises practical problems because the accused may not be aware of the identities of witnesses who gave evidence before the Crime Commission. As I suggested in argument, one possible approach is for the Judge to consider the application on a preliminary or provisional basis and, if a view is formed that the material may be released, call on submissions from the witness.

Those are the kinds of matters that might arise in any given case. Where relevant and applicable, I have applied that kind of approach and reasoning to a determination of the present application. However, it must not be assumed from anything that I have said that there is any evidence of the kind caught by the notice of motion. Such information will be made clear in the confidential annexure to this judgment. That annexure will be placed in a sealed envelope marked “not to be opened except by order of a judge of this Court or a judge of a higher Court” and kept with the file copy of this Judgment.

For the reasons set out in the confidential annexure, I make the following orders: