R v Qaumi (No 40) - [2016] NSWSC 807

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 40) [2016] NSWSC 807
Hearing dates: 16-17 June 2016
Date of orders: 17 June 2016
Decision date: 17 June 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Application for discharge of jury refused

Catchwords: CRIMINAL LAW – application to discharge of jury – non-responsive disclosure by witness that accused had just got out of gaol – whether answer creates unfairness – whether jury will focus on the evidence – poker face of Senior Counsel – evidence considered in context of issues in the trial – uncontested evidence of involvement in criminal gang – gangsters moll – relevance of length of trial – whether directions capable of curing prejudice – danger of highlighting evidence – whether transcript should be redacted if requested by jury
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

The accused Farhad Qaumi seeks a discharge of the jury on the basis of certain evidence given by a witness known as Witness I. The evidence discloses that at some time shortly before the middle of 2013 Farhad Qaumi was released from gaol. That fact has not been disclosed to the jury and the parties have agreed that it ought not to be disclosed in the evidence. I am told that he was in custody, with bail refused, pending resolution of unrelated charges of murder. He was acquitted in relation to two of those charges and a third charge was discontinued by the prosecution. I have ruled that evidence of Farhad Qaumi boasting about “beating” the earlier murder charges is inadmissible: see R v Qaumi & Ors (No 6) [2016] NSWSC 115 and R v Qaumi & Ors (No 24) [2016] NSWSC 24.
The evidence emerged in the following exchange:

“Q. Do you recall what was discussed at this first meeting?
A. Yeah.
Q. Can you tell us what was said?
A. Basically Farhad came out of gaol and he said he's taking over the BFL, he's making it to two parts and he's gonna be the leader. And if you're gonna be in the group, he's gonna be leading us.
Q. At that time was there discussed a structure of the group or hierarchy of the group?
A. He's gonna be the leader and Jamshid's gonna be second in charge and his brother Mumtaz gonna be third in charge.
Q.…

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 40)

Details

AGLC: R v Qaumi (No 40) [2016] NSWSC 807
Case: [2016] NSWSC 807
Decision Date: 17 June 2016

CaseChat Overview and Summary

The matter before the court involved the appellant, Qaumi, who was on trial for various criminal charges. The prosecution argued that Qaumi was involved in a criminal gang and had recently been released from prison. The appellant applied for a discharge of the jury, claiming that a witness's non-responsive disclosure regarding his recent release from prison was prejudicial and created unfairness. The court was required to determine whether this evidence was likely to cause unfairness and whether any directions could mitigate the prejudice.

The court considered the nature of the evidence and its potential impact on the jury's decision-making process. The judge noted that the witness's statement was non-responsive and did not directly relate to the charges against Qaumi. However, the court also acknowledged that the evidence of Qaumi's involvement in a criminal gang was uncontested. The judge held that the evidence should be considered in the context of the issues in the trial, and that the jury would be directed to consider all evidence in the context of the issues in the case. The court also considered the relevance of the length of the trial and the potential danger of highlighting the evidence.

The court ultimately held that the directions given to the jury were capable of curing any prejudice caused by the witness's non-responsive disclosure. The judge noted that the evidence was relevant to the issues in the case and that the jury would be directed to consider all evidence in the context of the issues. The court also held that there was no need to redact the transcript if requested by the jury, as the directions given to the jury were sufficient to address any potential prejudice. The application for discharge was dismissed.

Orders