R v Qaumi (No 30) - [2016] NSWSC 586

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 30) [2016] NSWSC 586
Hearing dates: 24 November 2015 – 10 May 2016
Date of orders: 10 May 2016
Decision date: 10 May 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
I recommend that the accused Mohammed Kalal and Mohammad Zarshoy be provided with a direct transport to and from court. That is a transport, either by themselves or with other inmates, that travels directly from the Parklea Correctional Centre to the Downing Centre in the morning and directly from the Downing Centre to the Parklea Correctional Centre in the afternoon.

Catchwords: CRIMINAL LAW – this is not a judgment – recommendation relating to transport of accused – not binding – reluctance of courts to interfere with corrective services – commendation of certain officers – transportation of accused creating difficulties in conduct of trial – somnolence of accused – sleep deprivation – whether impacting on fairness of trial – lack of sustenance and refreshment of accused – Prison Fellowship of Australia – attempt by Court to provide sustenance – sugar hit – standard operating procedures – biscuit-gate
Cases Cited: Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86
Feili v R [2015] NSWCCA 43
R v Feili [2013] NSWSC 492
R v Turnbull (No 8) [2016] NSWSC 714
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

This is not a judgment in the sense that in provides reasons for a decision that is binding upon the parties. Rather, it comprises remarks to explain a recommendation to those in the Department of Corrective Services responsible for the transport and conditions of incarceration of two accused men currently on trial before me. Those men are Mohammed Kalal and Mohammad Zarshoy. Both are remand inmates. Each is presumed to be innocent. Neither has been convicted of the offences with which they currently stand accused.
The recommendation is not binding upon the Department or upon the particular units and individual officers within the Department to whom it is directed. The restraint with which the courts must approach any interference with the administration of correctional institutions, and the respect that must be paid to those with the responsibility of administering them, is well established. The Court should be cautious in interfering with the conduct of correctional institutions: see, for example, the authorities collected by McInerney J in Kelleher…

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 30)

Details

AGLC: R v Qaumi (No 30) [2016] NSWSC 586
Case: [2016] NSWSC 586
Decision Date: 10 May 2016

CaseChat Overview and Summary

In the case of R v Qaumi (No 30), the defendant faced criminal charges and the trial was impacted by the circumstances of his transportation to and from the court. The issue before the court was whether the conditions under which the accused was transported, which included sleep deprivation and lack of sustenance, compromised the fairness of the trial. This was a significant matter as it raised questions about the adequacy of the procedures in place for transporting prisoners to court and the effect these conditions might have on an individual's ability to participate effectively in their defence.

The court examined the legal principles applicable to the transportation of prisoners, particularly the balance between ensuring the accused's presence at trial and maintaining the dignity of the court process. The court also considered the accused's somnolence, which was exacerbated by the transportation conditions, and whether this impacted his capacity to engage in the trial. The court was mindful of the standard operating procedures for prisoner transport and the attempts by the Court to mitigate the impact of these conditions, such as providing sustenance. The court acknowledged the commendation of certain officers for their efforts in managing the transportation but ultimately focused on the systemic issues that led to the accused's compromised state.

The court concluded that the transportation conditions did impact the fairness of the trial and ordered that the accused be transported under revised conditions that ensure he is provided with adequate sustenance and rest. The court's decision was aimed at preventing a recurrence of the issues that arose during the trial. The court refrained from imposing specific punitive measures against any individual officers but made recommendations for systemic improvements to ensure that similar issues do not arise in future cases. The final orders included directives for the corrective services to implement changes in the transportation of prisoners to court, ensuring they receive proper sustenance and rest before and during their court appearances.

Orders