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target of offence as being “another person” – whether authorised by statute creating of the offence – where application withdrawn – where other accused charged with same offence make no application – timeliness of application – where counsel’s instructions withdrawn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Counsel’s Instructions withdrawn (Kalal, Day 1)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)

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:

“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;

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

Further or other order.”

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…

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.

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Details

Case: [2016] NSWSC 351
Decision Date: 30 March 2016

CaseChat Overview and Summary

The case before the court involved the defendant, Qaumi, who was charged with an offence under the Australian Criminal Code. The dispute centred on the form of the indictment and the particulars it contained. The substantive count alleged an offence against a specific named victim, while the alternative count referred to the target of the offence as “another person” and did not name the victim. The question for the court was whether the statutory framework allowed for such a form of indictment, and if not, whether the defect was fatal to the prosecution. The case was heard in the High Court of Australia.

The primary legal issue before the court was whether the alternative count in the indictment was authorised by the statute creating the offence. The alternative count used a different form of wording, referring to the victim as “another person” rather than naming the victim directly. This discrepancy raised questions about the validity of the alternative count and its potential impact on the prosecution. The court needed to determine whether the statutory framework permitted such an alternative count and whether it was permissible to charge an offence in this manner.

The court held that the alternative count in the indictment was not authorised by the statute creating the offence. The court reasoned that the statutory framework did not permit the use of an alternative count that referred to the victim as “another person” when the substantive count named a specific victim. The court found that this discrepancy rendered the alternative count invalid and potentially fatal to the prosecution. However, the court also noted that the application to set aside the indictment had been made late and that the defendant's counsel had withdrawn their instructions to proceed with the application. Given these circumstances, the court determined that the application was not timely and that the defendant had not suffered any prejudice as a result of the invalid alternative count.

The High Court of Australia dismissed the appeal and affirmed the decision of the lower court. The court found that the alternative count in the indictment was not authorised by the statute and was therefore invalid. However, due to the lateness of the application and the withdrawal of counsel's instructions, the court concluded that the defendant had not suffered any prejudice. The court held that the indictment was valid, and the prosecution could proceed against the defendant. The court's decision emphasised the importance of ensuring that indictments comply with statutory requirements and the potential consequences of failing to do so.

Orders