R v Qaumi (No 37) - [2016] NSWSC 740

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 37) [2016] NSWSC 740
Hearing dates: 6 June 2016
Date of orders: 06 June 2016
Decision date: 06 June 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Application for leave to cross-examine Crown’s own witness refused.

Catchwords: CRIMINAL LAW – application by Crown for leave to cross-examine – application made after accused had cross-examined – refreshingly sparse cross-examination – witness adverse in one respect – application not made when witness gave evidence in chief – obligation of party to put matters to witness – unfairness to accused – application refused
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Livermore v R [2006] NSWCCA 334; 67 NSWLR 659
R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34
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 cross-examination by Mr Driels (counsel for Mr Zarshoy), the Crown Prosecutor sought leave to cross-examine Witness M pursuant to s 38(1)(a) of the Evidence Act 1995 (NSW). It was submitted that part of her evidence was unfavourable to the Crown. Mohammad Zarshoy opposed the granting of leave. I refused the Crown’s application, while leaving it open to the Crown to make a further application depending on the evidence given in re-examination. These are my reasons for refusing leave to cross-examine and also for refusing to make a direction under s 38(4) of the Evidence Act that such cross-examination take place after the cross-examination of the accused.
Witness M [1] was the driver of the vehicle that drove the shooters to Revesby Heights on the night of 28 October 2013. It is the Crown case that there were four people in the car and that three of them were armed. When the car arrived outside the Hamzy residence, the three armed men entered the premises and discharged their weapons with murderous intent. As a result, Mahmoud Hamzy was killed and Omar Ajaj was wounded. The three men were driven away from the scene by Witness M. It is the Crown case that the three armed men were Witness L, Jamil Qaumi and Mr Zarshoy. Witness M nominated Witness L and Jamil Qaumi but did not identify or nominate Mr Zarshoy.
1. Orders have been made to protect the identify of this witness and a number of other witnesses.
The Crown sought leave…

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 37)

Details

AGLC: R v Qaumi (No 37) [2016] NSWSC 740
Case: [2016] NSWSC 740
Decision Date: 06 June 2016

CaseChat Overview and Summary

The case involved an application by the Crown for leave to cross-examine a witness, made after the accused had already cross-examined the witness. The witness had given a refreshingly sparse cross-examination, being adverse in one respect but otherwise not significantly contributing to the case. The Crown's application was made after the witness had given evidence in chief, which raised questions about the timing and fairness of the application. The accused argued that the application was made too late and that the obligation to put matters to the witness lay with the party who called them, which in this case was the Crown. The accused also contended that allowing the application at that stage would be unfair.

The court had to decide whether the Crown's application for leave to cross-examine could be granted, despite being made after the accused had already cross-examined the witness. The central issue was whether the Crown was required to put all its points to the witness during their initial cross-examination, or if it could wait until after the accused's cross-examination. The court also needed to consider whether allowing the Crown's application at that stage would result in unfairness to the accused. The court weighed the potential unfairness to the accused against the Crown's right to challenge the witness's evidence.

The court held that the Crown's application for leave to cross-examine could not be granted. It found that the obligation to put matters to the witness lies with the party that calls them, which was the Crown. The court emphasised the importance of ensuring that the witness is given the opportunity to address all relevant points during their initial cross-examination. The court also concluded that allowing the Crown's application at that stage would result in unfairness to the accused, as it would potentially prejudice their right to a fair trial. Therefore, the application was refused.

The court's final order was that the Crown's application for leave to cross-examine the witness was refused. This decision underscored the importance of adhering to the principles of fairness and procedural justice in criminal trials. The court's ruling reinforced the need for parties to carefully consider the timing and manner of their cross-examinations to avoid potential unfairness to the opposing party.

Orders