R v Qaumi (No 18)

[2016] NSWSC 351

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 18) [2016] NSWSC 351
Hearing dates:	24 and 30 March 2016
Date of orders:	30 March 2016
Decision date:	30 March 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Notice of Motion dismissed.
Catchwords:	CRIMINAL LAW – form of indictment – particulars – where alternative count pleads different victim to substantive count – where alternative count pleads target of offence as being “another person” – whether authorised by statute creating of the offence – where application withdrawn – where other accused charged with same offence make no application – timeliness of application – where counsel’s instructions withdrawn
Legislation Cited:	Crimes Act 1900 (NSW)
Cases Cited:	R v Qaumi (No 3) Severance and Separate Trial [2016] NSWSC 15
Category:	Procedural and other rulings
Parties:	Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Mohammed Zarshoy Mohammed Kalal
Representation:	Counsel: K McKay & P Hogan (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami) N Carroll(J Quami) R Driels (Zarshoy) Counsel’s Instructions withdrawn (Kalal, Day 1) G Clarke (Kalal, Day 2)   Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten& Co (M Quami) Bannisters Lawyers (J Quami) Zahr Lawyers (Zarshoy) Hallak Law (Kalal)
File Number(s):	Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260Jamil Quami - 2013/336086; 2014/18164; 2014315253Mohammad Zarshoy – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939
Publication restriction:	No publication until the conclusion of the trial.

EX tempore Judgment (revised)

1. On 24 March 2016, which is to say on the 44th day of the pre-trial hearing which commenced on 5 November 2015, Mohammad Kalal filed in Court, with the reluctant leave of the Court, a notice of motion seeking orders:

1. “Proceedings on counts 8 and 9 of the indictment presented 26 February 2016 in this matter be stayed until such time as the Crown provides proper particulars of whom it is that the Crown relies on as "another person" for the purpose of count 9 of the indictment;

2. Further, or in the alternative, the Crown in this matter be put on election as to whether it proceeds with count 8 or 9 of the present indictment presented 26 February 2016; and

3. Further or other order.”

2. My reluctance in granting leave arose from the fact that the issue behind the orders sought in the notice of motion and supporting affidavit was first raised on behalf of Mr Kalal at the arraignment that took place on 27 July 2015. Why it has taken over six months for the parties to work out that they could not reach agreement as to the proper form of the indictment is a matter that is as inexplicable as it is unsatisfactory. In that time the trial date has come and gone twice. Originally, it was anticipated that the jury would be empanelled on 29 February 2016. That date was postponed until 14 March 2016. When the notice of motion was finally filed, the trial was due to commence on 4 April 2016. It needs hardly be said that the trial cannot commence until issues relating to the form of the indictment are resolved.

3. I accept that part of the problem was that the Court was dealing with multiple other issues, including an application by Mr Kalal that his trial be separated from the co-accused, and the case remitted to the District Court. My decision refusing that application was published on 3 February 2016: see R v Qaumi (No 3) Severance and Separate Trial [2016] NSWSC 15.

4. Further, for reasons that are not the fault of Mr Kalal, Senior Counsel withdrew from the case and new counsel was briefed. From the affidavit in support of the notice of motion, and from what I have been told, I gather that there was some attempt to have the Crown amend the indictment. Further, I understand that some amendments were, in fact, made to other counts. However, the accused maintained the position, at least until late on 24 March 2016, that the Crown was required to particularise or elect the victim of the count in relation to which complaint is made.

5. In any event, for those reasons, along with the fact that the issue concerning the correct form of the indictment, I granted leave for the notice of motion and supporting affidavit to be filed belatedly and the application for stay, pending provision of particulars or election, proceeded on its merits notwithstanding the tardiness with which it was brought and the inconvenience that it created.

6. Counsel made a number of submissions to the effect that there was a problem with the alternative count because it particularised a different victim to the victim particularised in the count to which it was an alternative.

7. The substantive charge of shoot with intent to murder, count 8, nominated "Masood Zakaria" as the intended target or victim for the person it was intended to kill. The alternative count, a charge under s 33 of the Crimes Act 1900 (NSW) of inflicting grievous bodily harm with intent to cause grievous bodily harm, originally nominated "Masood Zakaria or another person" as the intended victim. In each count the Crown alleges that the person actually shot was an innocent child. After some correspondence, the Crown deleted the words "Masood Zakaria" from count 9 so that it simply read:

"On 4 November 2013 at Blacktown in the State of New South Wales did cause grievous bodily harm to Hanna Zakaria with intent to do grievous bodily harm to another person."

8. The Crown maintained that the indictment was good and that the circumstances of the case and the terms of s 33 were such that it was valid to nominate the intended target as "another person".

9. Initially, the three other accused charged in counts 8 and 9 took a somewhat diffident approach. They purported to support the application but made no submissions. Nobody on the defence side of the case was able to assist with any authority in relation to the issue.

10. After the luncheon adjournment on 24 March 2015, I was informed that Mr Kalal had dismissed his counsel. His solicitor then advised that he was instructed by Mr Kalal to withdraw the application. Given that Mr Kalal has no legal qualifications, and the point seemed at least arguable, I declined to accept the withdrawal of the notice of motion and adjourned the application until today to enable alternative counsel to advise.

11. Today, Mr Kalal's new counsel, Mr Clarke (who I stress has not appeared in the case before today) informed me that the notice of motion is withdrawn. The other accused charged in counts 8 and 9 (Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi) do not seek to take any point in relation to the form of counts 8 and 9. Nor do they seek a stay, particulars or ask the Crown to be put to its election.

12. In those circumstances, the notice of motion must be dismissed.

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Decision last updated: 12 December 2016