R v Qaumi (No 33) - [2016] NSWSC 676

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 33) [2016] NSWSC 676
Hearing dates: 25 May 2016
Date of orders: 25 May 2016
Decision date: 25 May 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Warning under s 165 Evidence Act provided at the conclusion of Witness G’s evidence

Catchwords: CRIMINAL LAW – evidence that may be unreliable – warning to the jury – application that warning be given at the conclusion of the witness’s evidence – whether appropriate – whether all legal directions and warnings should be given in the course of the summing up – where trial lengthy – where a large number of informant witnesses are to give evidence – where one accused opposed the warning prior to the summing up – no submission made that there were “good reasons” not to provide the warning – danger of warnings being diluted – examples of directions given during the course of the trial and in advance of the summing up
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Nationwide News Pty Ltd v Qaumi [2016] NSWCCA 9
R v Qaumi & Ors (No 10) [2015] NSWSC 211
R v Qaumi & Ors (No 15) [2016] NSWSC 318
R v Qaumi & Ors (No 24) [2016] NSWSC 505
R v Qaumi and Ors (No 32) [2016] NSWSC 675
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

At the conclusion of the evidence of a witness known as Witness G[1] , Senior Counsel for Mumtaz Qaumi sought a direction pursuant to s 165 of the Evidence Act 1995 (NSW) that certain evidence may be unreliable. Initially, the direction was sought in relation to the witness who was next to be called, a witness known as Witness M. However, in the course of argument it was conceded that giving the direction before Witness M gave evidence was inappropriate because it was not known with any certainty what evidence the witness would actually give or what evidence would emerge that supported a direction that her evidence fell into a category that may be unreliable. Senior Counsel then sought a s 165 warning in relation to Witness G.
1. At an early stage of the trial, the Police Commissioner made an application that the names and identities of 13 witnesses be suppressed R v Qaumi & Ors (No 10) [2015] NSWSC 211 and R v…

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 33)

Details

AGLC: R v Qaumi (No 33) [2016] NSWSC 676
Case: [2016] NSWSC 676
Decision Date: 25 May 2016

CaseChat Overview and Summary

The case of R v Qaumi (No 33) involved a criminal trial where the reliability of certain evidence was in question. The case was heard in a court of law, and the primary issue was whether the court should provide a warning to the jury about the potential unreliability of the evidence before the summing up. The court was required to decide if it was appropriate to give such a warning at the conclusion of a witness's evidence, or if all legal directions and warnings should be reserved for the summing up.

The legal issues centred on the timing and manner of providing warnings to the jury about unreliable evidence. The court considered whether warnings about the reliability of evidence should be given immediately after the evidence is presented, or if it was more appropriate to wait until the summing up. The case highlighted the potential for warnings to be diluted if given at the end of a lengthy trial with many informant witnesses. Additionally, the court considered the objection of one accused to the warning before the summing up and the lack of submission that there were "good reasons" not to provide the warning.

The court reasoned that while there was a risk of warnings being diluted if given at the conclusion of the trial, it was also important to ensure that the jury received all necessary directions and warnings at the appropriate time. The court decided that while it was generally preferable for all legal directions and warnings to be given in the course of the summing up, there may be circumstances where it is appropriate to provide a warning at an earlier stage. The court found that the warning should be given when the evidence was presented, considering the specific circumstances of the case and the potential impact on the jury's understanding of the evidence.

The final orders of the court were that the warning about the unreliable evidence should be given at the conclusion of the witness's evidence. The court emphasised the importance of providing clear and timely warnings to the jury to ensure a fair trial. The court also noted that while the warning could be diluted if given at the end of a lengthy trial, it was necessary to ensure that the jury received all relevant information at the appropriate time.

Orders