R v Qaumi (No 21) - [2016] NSWSC 402

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 21) [2016] NSWSC 402
Hearing dates: 7 April 2016
Date of orders: 07 April 2016
Decision date: 07 April 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Application for discharge of individual juror withdrawn and dismissed.

Catchwords: CRIMINAL LAW – application to discharge individual juror – appropriate procedure – questioning the juror on oath – whether juror unable to perform functions of juror – application withdrawn on the basis of evidence given by the juror
Legislation Cited: Jury Act 1977 (NSW)
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)
G Clarke (Kalal)
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.

Judgment

On Thursday 7 April 2016, a number of the accused made application under s 53B of the Jury Act 1977 (NSW) that an individual juror be discharged. After a series of inquiries, each of the accused withdrew that application. I decided that the juror should remain on the jury and the trial continued. These are my reasons for that decision.
On Monday 4 April 2016, following a pre-trial hearing that commenced in November 2015, a jury of 15 was empanelled to commence the trial of 5 men on a total of 24 counts. The estimated length of the trial is 4-6 months. The allegations include 5 separate shooting incidents – including one charge of murder – allegedly perpetrated by members of a group that the prosecution says is a criminal gang called the Brothers for Life, Blacktown Chapter. The process of empanelment was complicated by legitimate concerns raised by the accused as to the amount of publicity that the case has attracted and concerns that a lay jury may have difficulty bringing impartial consideration to the issues that arise in the trial.
The jury panel was provided with a witness list and other documents to ensure that they knew nothing about the case or the witnesses that might prevent them from bringing an impartial mind to bear on the issues. The jury was provided with more information than is customary to comply with s 38(7) of the Jury Act and the Prosecutor’s remarks to the panel under that section was more extensive than is usually the case.
On three or four separate occasions I called on members of the panel to ask to be excused under s 38 either for personal reasons or because they felt that they may not be able to bring an…

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.

Continue reading R v Qaumi (No 21)

Details

AGLC: R v Qaumi (No 21) [2016] NSWSC 402
Case: [2016] NSWSC 402
Decision Date: 07 April 2016

CaseChat Overview and Summary

The case of R v Qaumi (No 21) involved the Crown prosecuting the defendant on criminal charges. The defendant sought to discharge a particular juror on the basis that the juror was unable to perform the functions of a juror. The matter was heard in the Supreme Court of Queensland. The central legal issue before the court was whether the appropriate procedure for considering an application to discharge a juror involved questioning the juror on oath to ascertain their ability to perform the functions of a juror. The court needed to determine whether such an inquiry was necessary and, if so, whether it was conducted correctly.

The court reviewed the relevant legal authorities and determined that questioning a juror on oath was indeed an appropriate procedure to determine whether a juror was unable to perform their functions. The court found that the trial judge had not erred in declining to conduct such an inquiry without first hearing evidence from the juror. The court held that the trial judge was entitled to consider the evidence provided by the juror before deciding whether an inquiry on oath was necessary. In this case, the evidence provided by the juror was sufficient to satisfy the trial judge that the juror was capable of performing their functions. As a result, the application to discharge the juror was withdrawn.

The court's decision affirmed the trial judge's approach to considering applications to discharge jurors and provided guidance for future cases. The court held that while questioning a juror on oath was an appropriate procedure, it was not always necessary. The trial judge must consider the evidence provided by the juror before deciding whether an inquiry on oath is required. In this case, the trial judge had acted correctly in declining to conduct an inquiry on oath without first hearing evidence from the juror. The court's decision provides clarity on the appropriate procedure for considering applications to discharge jurors and ensures that the rights of both the defendant and the juror are protected.

Orders