R v Qaumi (No 25) - [2016] NSWSC 514

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 25) [2016] NSWSC 514
Hearing dates: 26 April 2016
Date of orders: 26 April 2016
Decision date: 28 April 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Application for discharge of the jury refused.

Catchwords: CRIMINAL LAW – application for discharge of jury by four of five accused – publication of newspaper article concerning alleged victim of shooting incident – where article followed a television program in which victim and his mother were interviewed – both interviewees witnesses in current trial – where article unrelated to current proceedings – where article failed to distinguish between chapters of Brothers for Life – presentation of alleged victim – uninspiring performance – self-aggrandising gangster figure – buffoon – conduct of jury demonstrates obedience to directions – repeated directions to decide case on the evidence – no real risk that jury will be influenced – appropriate directions – application refused.
Cases Cited: R v Qaumi & Ors (No 21) [2016] NSWSC 402
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 Tuesday 26 April 2016, four of the five accused currently standing trial made an application that the jury be discharged as a result of two media items which relate in general terms to a group described as the “Brothers for Life”.
The applications were made by Senior Counsel and Counsel appearing for Farhad Qaumi, Mumtaz Qaumi, Jamil Qaumi and Mohammed Kalal. The fifth accused, Mohammed Zarshoy, did not make an application for the jury to be discharged. Having heard the submissions from all counsel and having considered the details of the media publications I declined the application for discharge of the jury. When the jurors returned to the courtroom, I gave them further directions in relation to the approach that they should take to information, either media driven or otherwise, that comes to their attention during the course of the trial. At the commencement of the trial, I told the jury that there may be publicity surrounding the case itself or the events giving rise to the case and directed the jury that to be true to their oath or affirmation they must ignore such information and decide the case only on the evidence.
These are my brief reasons for concluding that the jury should not be discharged.
The first media report concerned a television program known…

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 25)

Details

AGLC: R v Qaumi (No 25) [2016] NSWSC 514
Case: [2016] NSWSC 514
Decision Date: 28 April 2016

CaseChat Overview and Summary

In the matter of R v Qaumi (No 25), the High Court of Australia was asked to determine whether the trial of five accused individuals should be discharged due to a newspaper article published about the alleged victim of a shooting incident. The article in question was published following a television program in which the alleged victim and his mother, both witnesses in the current trial, were interviewed. The publication did not pertain to the current proceedings and did not distinguish between the chapters of the book Brothers for Life in which the alleged victim was presented. The presentation in the book was described as uninspiring, portraying the alleged victim as a self-aggrandising gangster figure and a buffoon. The central legal issue for the court was whether the publication of the article had compromised the fairness of the trial, necessitating a discharge of the jury.

The court considered whether the article had the potential to influence the jury, despite the repeated directions to base their decision solely on the evidence presented in court. The court held that the conduct of the jury demonstrated their obedience to the directions, and that there was no real risk that they would be influenced by the article. The directions provided were deemed appropriate, and the court concluded that the application for discharge should be refused. The court reasoned that the presentation of the alleged victim in the article was not relevant to the current proceedings and that the jury had been adequately instructed to focus on the evidence.

Given the reasoning above, the High Court of Australia dismissed the application for the discharge of the jury. The court found that the publication of the newspaper article did not pose a real risk of influencing the jury and that the directions given were sufficient to ensure a fair trial. The trial continued as scheduled, and the jury was instructed to make their decision based on the evidence presented during the trial. This decision underscores the importance of clear and repeated directions to a jury to ensure the integrity of the judicial process.

Orders