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R v Qaumi (No 36)

R v Qaumi (No 36)

Case [2016] NSWSC 718 6 June 2016

Appeal

Jurisdiction

Reasonable Apprehension of Bias

Sub-conscious Influence

Directions

Statutory Test

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 36) [2016] NSWSC 718
Hearing dates: 1-2 June 2016, 6 June 2016
Date of orders: 06 June 2016
Decision date: 06 June 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
(1) Pursuant to s 53B(b) of the Jury Act 1977 (NSW), Juror 00393293 is discharged.
(2) Pursuant to s 53C(1) of the Jury Act 1977 (NSW), the trial is to continue with a reduced number (14) jurors.

Catchwords: CRIMINAL LAW – application for discharge of individual juror – juror’s acquaintance with important witness – whether reasonable apprehension of bias – where connection raised by the witness – no contact for six years – where juror knows witness by nickname – immediate recognition of photograph – appropriate legal test – where juror denies influence – whether influence may be sub-conscious – where accused oppose discharge – whether directions capable of curing sub-conscious influence – fact that juror would have been excused if matter emerged at beginning of trial not relevant – “It was a different time”
CRIMINAL LAW – procedure on application to discharge individual juror – separating juror from remaining members of the jury – Sheriff’s investigation – power to examine juror – when appropriate to examine juror – investigations during trial not exhaustive
CRIMINAL LAW – discretion to continue trial when individual juror discharged – two stage process – questions not to be conflated – statutory test
Legislation Cited: Jury Act 1977 (NSW)
Cases Cited: BG v R [2012] NSWCCA 139
CUR24 v DPP [2012] NSWCA 65
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507
R v Bright [2000] NSWCCA 258
R v Finley [2016] NSWSC 327
R v Moore [2014] NSWSC 1955
R v Qaumi & Ors (No 10) [2015] NSWSC 21
R v Qaumi & Ors (No13) [2016] NSWSC 337
R v Qaumi & Ors (No 17) (Additional Jurors) [2016] NSWSC 338
R v Qaumi & Ors (No 21) [2016] NSWSC 402
R v Wood [2008] NSWSC 817
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; 81 FCR 71
Webb v The Queen (1994) 181 CLR 41
Wu v The Queen [1999] HCA 52; 199 CLR 99
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…

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 36)

Details

AGLC: R v Qaumi (No 36) [2016] NSWSC 718
Case: [2016] NSWSC 718
Decision Date: 06 June 2016

CaseChat Overview and Summary

In the case of R v Qaumi (No 36), the accused was on trial for serious criminal charges. During the trial, a motion was made to discharge a particular juror due to concerns about the juror's potential bias. The juror had a prior acquaintance with an important witness in the case, who was a key figure in the prosecution's case against the accused. The nature of the connection between the juror and the witness, as well as the circumstances of their prior acquaintance, were central to the motion for discharge.

The legal issues before the court included whether the juror's prior acquaintance with the witness created a reasonable apprehension of bias, and if so, whether this bias could be addressed through directions to the jury. The court had to consider whether the acquaintance was such that it might influence the juror's decision-making process, even if the juror denied any current influence. Additionally, the court needed to assess whether the directions provided to the jury could mitigate any potential subconscious bias the juror might have.

The court found that the connection between the juror and the witness, despite the six-year gap since their last interaction, was significant enough to raise a reasonable apprehension of bias. The court acknowledged the juror's denial of any current influence but emphasised that bias could operate subconsciously. The court also noted that the fact the juror would have been excused earlier in the trial did not negate the need to address the issue at hand. The court concluded that the potential for subconscious bias could not be adequately mitigated by directions, and therefore, the juror should be discharged. The court then proceeded to consider whether the trial could continue with the remaining jurors, applying the appropriate statutory test to determine this.

The court ultimately decided that the trial could continue with the remaining jurors, provided the appropriate directions were given to address any concerns about bias. The final orders included the discharge of the juror in question and the continuation of the trial under the conditions specified.

Orders