R v Qaumi (No 29) - [2016] NSWSC 569

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 29) [2016] NSWSC 569
Hearing dates: 5 May 2016
Date of orders: 05 May 2016
Decision date: 05 May 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Application for discharge of jury refused.

Catchwords: CRIMINAL LAW – application for discharge of jury – where counsel for co-accused elicits potentially prejudicial evidence – “stand over bloke” – “got out of gaol” – where counsel misapprehended interview – failure to object to evidence not relevant to discharge application – potential for prejudice – no clear identification of accused – minor incident in a lengthy trial – potential prejudice cured by direction
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 5 May 2016, Mr Clarke of counsel made an application for a discharge of the jury in respect of his client Mohammed Kalal. The application arose because of the potential prejudice occasioned by the cross-examination of a prosecution witness (Craig McCarthy) by Senior Counsel for Farhad Qaumi late on Wednesday 4 May 2016. I refused the application. These are my reasons for doing so.
The witness’s evidence concerns the hiring of a rental car on 28 October 2013. The witness says that he hired the car with the accused Mohammed Kalal. That evidence appears to be undisputed and is supported by documentary evidence (Exhibit UUU). Mr McCarthy went on to give evidence that the car was used that afternoon to deliver cannabis. On the Crown case, the car was used later that night or in the early hours of the following morning, to drive the assassins to and from Bardo Circuit Revesby Heights where Mahmoud Hamzy was shot dead. It was later found burned out. It is no part of the Crown case that Mr Kalal (or the witness McCarthy) hired the car in the knowledge that it would be used in the murder. As I understand it, the evidence will suggest that the plan to commit the murder at Revesby Heights was not hatched until afterwards.
Mr Kalal is charged in relation to two shootings that occurred later in time (counts 8 to 17) as well as with an offence of participating in a criminal group (count 24). The evidence of Mr McCarthy concerning the hiring of the car and its use in doing drug deals is admitted against Mr Kalal only in relation…

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 29)

Details

AGLC: R v Qaumi (No 29) [2016] NSWSC 569
Case: [2016] NSWSC 569
Decision Date: 05 May 2016

CaseChat Overview and Summary

In the case of R v Qaumi (No 29), the respondent, Qaumi, sought a discharge of the jury after an incident during the trial. Counsel for the co-accused elicited evidence that Qaumi had previously "stood over" another individual and had "got out of gaol", which was potentially prejudicial. The trial judge declined the application, and Qaumi appealed the decision. The appeal raised questions about the grounds for discharging a jury due to prejudicial evidence and the circumstances under which such evidence might necessitate a discharge.

The court examined whether the evidence elicited by counsel for the co-accused was indeed prejudicial and whether it warranted a discharge of the jury. It was noted that counsel for Qaumi failed to object to the evidence when it was presented, which could have been seen as an admission of its relevance. The court also considered that the evidence did not clearly identify Qaumi as the individual who had "stood over" the other person, and the incident was a minor occurrence in the context of a lengthy trial. The potential for prejudice was considered in light of the trial judge's direction to the jury to disregard the evidence, which was deemed sufficient to cure any prejudice.

The court concluded that the trial judge was correct in denying the application for discharge. The evidence in question, while potentially prejudicial, did not clearly identify Qaumi and was a minor incident in the broader context of the trial. The court found that the potential prejudice was cured by the trial judge's direction to the jury. The appeal was therefore dismissed, and the jury was not discharged.

Orders