R v Qaumi and Qaumi (No 3)

[2016] NSWSC 1494

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Qaumi (No 3) [2016] NSWSC 1494
Hearing dates:	13 October 2016
Date of orders:	13 October 2016
Decision date:	13 October 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Pursuant to ss 45(4) of the Crime Commission Act 2012 ('the Act'), the Court certifies that: (a) Farhad Qaumi and Mumtaz Qaumi have been charged with an offence before a court of this State; and (b) it considers that it may be desirable in the interests of justice that particular evidence given before the New South Wales Crime Commission ('the Commission') in relation to which the Commission has given a direction under s 45 of the Act - namely, evidence given by Witness M - be made available to the legal practitioners representing Farhad Qaumi and Mumtaz Qaumi and to the prosecutor.
Catchwords:	CRIMINAL LAW – evidence given at NSW Crime Commission – application for evidence to be produced to the Court – witness to be called by the Crown – whether it “may be desirable in the interests of justice” for material to be produced to the parties – certificate given to the Commission
Legislation Cited:	Crime Commission Act 2012 (NSW)
Cases Cited:	R v Qaumi & Ors (No 3) [2016] NSWSC 15 R v Qaumi and Ors (No 7) [2016] NSWSC 287 R v Qaumi and Ors (No 11) [2016] NSWSC 211 R v Qaumi and Ors (No 19) [2016] NSWSC 352
Category:	Procedural and other rulings
Parties:	Regina Farhad Qaumi Mumtaz Qaumi
Representation:	Counsel: K McKay & P Hogan (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami)   Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten & Co (M Quami)
File Number(s):	Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260
Publication restriction:	No publication until the conclusion of the trial.

EX TEMPORE Judgment (REVISED)

1. The situation is that the witness known as Witness M gave evidence in the joint trial in which the jury is presently deliberating. In the course of preliminary hearings leading up to that trial, an application was made that evidence that Witness M had given at the Crime Commission be produced to the Court and to the parties: ss 45(4) and (5) Crime Commission Act 2012. The first of these was not published and remains confidential: R v Qaumi & Ors(No 7) [2016] NSWSC 287. The second was published in a form whereby part of the judgement was public (although presently subject to a non-publication order until the end of a related trial) and the balance in the form of a confidential annexure which is not to be published and is to be secured in a sealed envelope: see R v Qaumi & Ors (No 11) [2016] NSWSC 211. There was a thrid judgment relating the the Crime Commission’s application for non-publication orders: R v Qaumi & Ors (No 19) [2016] NSWSC 352.

2. The second of those judgments set out the application made on behalf of Farhad Qaumi seeking "any evidence given before the Commission:

1. Relating to the murder of Joseph Antoun;

2. Relating to the murder of Mahmoud Hamzy;

3. Relating to the conspiracy to murder Mahmoud Hamzy; or,

4. Any evidence given by Mahmoud Hamzy.”

3. Once the trials were separated in accordance with R v Qaumi & Ors (No 3) [2016] NSWSC 15, the application for the documents under (a) – that is, evidence “relating to the murder of Joseph Antoun” – was abandoned by Farhad Qaumi, as was, indeed, the application for evidence given by Mohammed Hamzy.

4. Witness M gave evidence before the Crime Commission and a certificate under s 45(4) of the Crime Commission Act 2012 (NSW) was given and the material was produced to the Court. Thereafter, the evidence was made available to the accused: see R v Qaumi & Ors (No 11) at [33]. However, it was in a redacted form whereby any reference to evidence given by Witness M as to the murder of Joseph Antoun was edited out or redacted.

5. In the judgment, I said:

“The Antoun trial is to proceed after the trial relating to the murder of Mahmoud Hamzy and other related shooting offences and whether the accused brings a separate application in relation to the Antoun trial will be a matter for him.”

6. The accused Farhad Qaumi and Mumtaz Qaumi have now brought an application by notice of motion with supporting affidavits for material or evidence given at the Crime Commission by one particular witness, that is Witness M, relating to the Antoun murder.

7. Mr McIlwaine from the Crown Solicitor's Office appears on behalf of the New South Wales Crime Commission and indicates that he does not object to a certificate being granted under s 45(4), the result of which would be that the material would be produced to the Court and there would then possibly be an argument as to whether or not the evidence would be released to the accused based on the criteria in s 45(5) which were discussed in the judgment R v Qaumi & Ors (No 11).

8. I note that the reasoning in R v Qaumi & Ors (No 11), because of the nature of the material, was largely contained in a confidential annexure to the judgment, which has not and will not be provided to the accused and is generally unavailable to the public. But it seems clear enough to me that Witness M will be an important, if not critical, witness in the forthcoming proceedings and that evidence Witness M gave on the subject of the Antoun murder and any knowledge Witness M may or may not have had of it clearly has potential to be relevant to the manner in which the accused conduct their defence.

9. I propose to grant a certificate pursuant to s 45(4) of the Crime Commission Act in the form helpfully provided by Mr McIlwaine and I do so.

10. Accordingly, pursuant to s 45(4) of the Crime Commission Act2012 ('the Act'), the Court certifies that:

(a) Farhad Qaumi and Mumtaz Qaumi have been charged with an offence before a court of this State; and

(b) the Court considers that it may be desirable in the interests of justice that particular evidence given before the New South Wales Crime Commission ('the Commission') in relation to which the Commission has given a direction under s 45 of the Act - namely, evidence given by Witness M - be made available to the legal practitioners representing Farhad Qaumi and Mumtaz Qaumi and to the prosecutor.

**********

Decision last updated: 16 December 2016