R v Qaumi and Qaumi (No 5) - [2016] NSWSC 1537

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Qaumi (No 5) [2016] NSWSC 1537
Hearing dates: 21, 24 & 27 October 2016
Date of orders: 03 November 2016
Decision date: 03 November 2016
Before: Hamill J
Decision:
Decline to make an order under s 45(5) Crime Commission Act 2012 (NSW) making evidence available to the accused, their legal representatives or to the Crown.

Catchwords: CRIMINAL LAW – whether evidence given before Crime Commission should be provided to the parties in a criminal trial – whether interests of justice so require – relevant considerations – accused charged with contract killing – where evidence suggests motive in others to kill victim – where Crime Commission objects – where witness expresses fears for safety – where witness compelled to give evidence and told the evidence would not be published – where material in the form of questions not answers – where Crime Commission undertakes to notify parties of substance of evidence while not disclosing identity of witnesses
Legislation Cited: Crime Commission Act 2012 (NSW)
Cases Cited: R v NK (No 3) [2015] NSWSC 1257
R v Qaumi & Ors (No 3) (Severance and separate trial) [2016] NSWSC 15
R v Qaumi & Ors (No 11) (s 45 Crime Commission Act) [2016] NSWSC 211
Category: Procedural and other rulings
Parties: Regina
Farhad Qaumi
Mumtaz Qaumi
Representation:
Counsel:
K McKay (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

Judgment

The accused are charged with the murder of Joseph Antoun (“the Antoun murder”). The trial, which is by Judge alone, commenced around an hour before the orders to which this judgment relates were made. Arguments relating to the matter were made before the trial commenced but a decision could not be made until the NSW Crime Commission complied with certain undertakings made to the Court in the absence of the parties. A jury is presently considering its verdicts in respect of a large number of charges against the same two accused as well as three other men. Those charges include the murder of Mahmoud Hamzy and a conspiracy to murder Mohammed Hamzy (“the Hamzy murder”). The two trials were separated as a result of orders made in February 2016: R v Qaumi & Ors (No 3)(Severance and separate trial) [2016] NSWSC 15.
Prior to the commencement of the first trial, the accused Farhad Qaumi brought a notice of motion seeking orders under ss 45(4) and 45(5) of the Crime Commission Act2012 (NSW) requiring the NSW Crime Commission to produce the transcripts of certain evidence to the Court and then to release those transcripts to the parties in the trial. Ultimately, an edited transcript of the evidence of a particular witness (“the Witness”) was released…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read R v Qaumi and Qaumi (No 5) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWSC 1537
Decision Date: 03 November 2016

CaseChat Overview and Summary

In the case of R v Qaumi and Qaumi, the court was tasked with determining whether evidence provided to a crime commission should be shared with the parties involved in a criminal trial. The case involved the accused, Qaumi, who was charged with contract killing. The defendants sought access to evidence given to a crime commission, which the commission had objected to sharing, citing the interests of justice. The dispute arose within the context of the broader criminal proceedings against the accused, who faced serious allegations of orchestrating a murder.

The central legal issue was whether the interests of justice required the disclosure of evidence obtained by the crime commission to the parties in the criminal trial. The court had to balance the rights of the accused to a fair trial against the potential harm to witnesses who had testified before the commission. The defendants argued that the evidence could provide crucial context and counterarguments to the prosecution's case, while the commission contended that disclosing the evidence would compromise the safety of witnesses and the integrity of the investigative process.

The court considered several factors in its decision, including the nature of the evidence, the potential impact on the trial's fairness, and the safety of witnesses. The court noted that the evidence in question consisted of questions rather than answers, and that the commission had already undertaken to notify the parties of the substance of the evidence while protecting the identities of the witnesses. The court ultimately concluded that the interests of justice did not necessitate the disclosure of the evidence, taking into account the assurances provided by the commission regarding witness safety and the limited nature of the information to be shared.

The final outcome of the case was that the court denied the defendants' application for the disclosure of the crime commission's evidence. The court's ruling emphasised the importance of protecting the integrity of the investigative process and the safety of witnesses, while also ensuring that the accused received a fair trial. The court ordered that the substance of the evidence would be communicated to the parties without revealing the identities of the witnesses, thus achieving a balance between the competing interests at stake.

Orders