Events since the previous judgment
18After the delivery of that judgment, police undertook the task of contacting every one of the civilian eye-witnesses. I am satisfied that this was done in a very careful and sensitive way in order not to create fears or concerns in witnesses where no such fears or concerns were held, or to elevate the level of any fears or concerns that were held. The contact was in the nature of a routine call to organise for the attendance of witnesses to give evidence at the trial. There was no discussion about previous applications by the Commissioner for pseudonym orders at the committal hearing or in this Court unless the topic was first raised by the witness. The witnesses were informed that there was a need to give their names at the commencement of their evidence. Any reaction to that information was recorded in writing. If any fears or concerns were expressed, further questions were asked in a non-leading fashion about their nature and extent.
19A number of the witnesses who had been contacted up until the swearing of Mr Kaldas' affidavits on 20 May 2011 expressed fears and concerns both about giving evidence and about revealing their identities. What was said by the 20 witnesses who are the subject of the present application is set out in Mr Kaldas' confidential affidavit. Concern was expressed in the submissions of some counsel for the accused about this material being confidential. However, as Mr Bromwich submitted, disclosure of those responses in a number of cases would involve disclosure of material of an identifying nature.
20Mr Kaldas also deposes that fears and concerns were expressed by a number of witnesses who were not the subject of the present application. There is the suggestion that it would be inappropriate to disclose the identities of such witnesses a significant time before they give their evidence because of the possibility that the concerns of the witnesses may be elevated as the time approaches for them to attend court, and it may be the case that an application will be made in respect of further witnesses at a later time. That is a matter that I do not need to be concerned about in determining the present application.
21The submissions by counsel for the accused in opposition to the Commissioner's application were largely similar to those that were made on 21 April 2011 in response to the previous application. I will only indicate a response to them where there was an added dimension to them.
22There was reference to the application being unprecedented in terms of the number of witnesses in respect of whom it was concerned. That is a matter about which I expressed concern in my previous judgment.
23Reference was made to the inadvertent disclosure by the police of identifying information in respect of some of the witnesses, the point being made that there was no evidence that any of those witnesses had been the subject of any inappropriate contact. An additional aspect of that matter is that it is one of the specific matters that I am required to take into account: s 130(5)(e) Evidence Act 1995.
24There was reiteration of the point that the evidence of the witnesses was, in effect, "locked in", in that they had all made statements and many had given evidence at the committal hearing. As a result, if any witness did not give evidence in accordance with what was expected of them, the Crown could have recourse to the provisions of s 38 of the Evidence Act .
25Submissions were made about the lack of any need, or at least the unlikelihood of any need, for witnesses who reside overseas to require any protective measures.
26It was submitted that it was possible that the police themselves were generating fears and concerns by the nature of their contact with the witnesses. Mr Bromwich responded to this by submitting that this was far from the case as it is not in the interests of the police at all to be dissuading witnesses from giving evidence. That response, with respect, is logical and reflects common sense.
27It was submitted that the Court should undertake the task of examining each of the witnesses individually. Understandably, that was a submission made without knowledge of the contents of the confidential affidavits. I do not consider that it is necessary for that course to be undertaken and I have considerable reservations about how it could be practical to do so.
28Mr Driels made the point that there was, to his knowledge, nothing to indicate that any witness had any reasonable and genuine fear of his client, Mr Potrus, as opposed to the group with which he was associated, that is, the Comanchero motorcycle club. The submission was that it was Mr Potrus on trial, not the Comanchero. It is true to say that none of the witnesses have expressed any fear or concern about an individual accused. However, there are fears and concerns about the accused generally because of the clubs with which they are associated.
29The situation appears to be the same as it was on the previous occasion in terms of any challenge to the evidence of the civilian witnesses being upon the basis of their accuracy and reliability as opposed to their credibility in terms of honesty. None of the witnesses were acquainted with any of the accused. The situation is far removed from that which was the case in some of the authorities referred to in my previous judgment such as Davis , above.
30The primary concern appears to remain, that being the potential for prejudice if the jury were aware that some of the witnesses were not being identified in court by their own name. Some counsel have expressed the view that the jury should be told at an early stage by way of some appropriate direction. Other counsel took the view that no direction could cure the prejudice.
31I announced on 24 May 2011 that I would grant the application in respect of 5 of the 20 witnesses. Prior to making my opening remarks to the jury on 25 May 2011, there was further debate amongst counsel on the question of whether a direction should be given, and if so, in what terms. There was no unanimity on the subject. In the end, I resolved that it would be appropriate that I say something in brief terms to the jury during the course of my opening remarks. In my view it was appropriate that the jury be informed so as to avoid any embarrassing complication in the event there was an inadvertent slip later on. It was appropriate to do so in my opening remarks rather than at some other time so as to avoid giving the issue prominence. What I said to the jury seemed to be acceptable to most counsel after an amendment to what I had proposed to say that was helpfully suggested by Mr Young SC.
32I indicated on 24 May 2011 that I was satisfied that the fears and concerns expressed by each of the witnesses who had been spoken to by police were reasonably and genuinely held. However, I remained of the view I had indicated in my previous judgment that there was a possibility that the concerns of some witnesses, at least, could possibly be placated by further discussion with the police. I understand that the police have not engaged in such discussions to date because of the care and sensitivity with which they have approached the subject with all of the witnesses.
33In respect of five of the witnesses, however, there was an additional element which I felt warranted the granting of the application. It would be inappropriate for me to set out the detail in this judgment except to say that I am satisfied that these five witnesses are, in my view, particularly vulnerable because of circumstances personal to them. The reasons for that view are based upon material in Mr Kaldas' confidential affidavit of 20 May 2011.
34I announced in court on 24 May 2011 that the application of the Commissioner was granted in respect of five of the witnesses. On 26 May 2011 I announced the orders made as a consequence. Those announcements were in the following terms.