R v Qaumi (No 41) - [2016] NSWSC 857

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 41) [2016] NSWSC 857
Hearing dates: 22 & 23 June 2016
Date of orders: 23 June 2016
Decision date: 23 June 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Application to discharge individual juror refused.

Catchwords:
CRIMINAL LAW – application to discharge juror – apprehended bias – smiling juror – whether interaction constituted flirting – observations of police officers and solicitor – whether observations capable of being made – shortest view in Supreme Court history – whether conduct gave rise to reasonable apprehension of bias – whether conduct “persistent” –what is wrong with smiling?
CRIMINAL LAW – application to discharge juror – whether juror disobeyed direction – where no allegation of misconduct leading to mandatory discharge – proper inferences to be drawn from snippet of conversation overheard in street – whether constitutes “other reason affecting the juror’s ability to perform the functions of a juror”
Legislation Cited: Jury Act 1977 (NSW)
Cases Cited: Avery v Registrar of Briths Deaths and Marriages (No 2) [2014] NSWCATAP 43
CUR24 v DPP [2012] NSWCA 65
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Johnson v Johnson [2000] HCA 48; 201 CLR 488
R v Qaumi & Ors (No 8) [2016] NSWSC 184
R v Qaumi & Ors (No 36) [2016] NSWSC 718
Webb and Hay v The Queen [1994] HCA 30; 181 CLR 41
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

On 22-23 June 2016, the prosecution made an application under s 53B of the Jury Act 1977 (NSW) seeking an order that one particular juror be discharged. The basis of the application is that provided for by ss 53B(b) and (d) of the Jury Act. I refused the application. These are my reasons.
The Crown submitted that there is a reasonable apprehension of bias in the individual juror. Simply put, the Crown’s application was based on observations made by a number of participants in the trial that, from time to time, the particular juror has smiled at one or more of the accused and that the accused have smiled at her. At first blush, that is not a particularly compelling basis upon which to assert that the juror is demonstrating behaviour that might cause an objective observer of the proceedings to believe that she (the juror) might…

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 41)

Details

AGLC: R v Qaumi (No 41) [2016] NSWSC 857
Case: [2016] NSWSC 857
Decision Date: 23 June 2016

CaseChat Overview and Summary

The case of R v Qaumi (No 41) involved the respondent, Qaumi, who was charged with various criminal offences. The matter came before the Supreme Court, which was asked to determine whether a juror had acted in a manner that gave rise to a reasonable apprehension of bias. The primary issue was whether the juror's conduct, including smiling and an interaction that was interpreted as flirting, constituted misconduct warranting the juror's discharge. Additionally, the court had to assess whether the alleged misconduct was persistent and whether the observations made by police officers and a solicitor could be reasonably made.

The court considered the nature of the juror's conduct, focusing on whether the interaction in question amounted to flirting. It also examined the observations made by the police officers and solicitor, determining whether these could be reasonably made under the circumstances. The court emphasised the need to view the conduct in the shortest view, as per the Supreme Court's history, and scrutinised whether the conduct could give rise to a reasonable apprehension of bias. The court concluded that the conduct did not meet the threshold for discharge, as it was not persistent and did not constitute misconduct warranting such a remedy.

The court further addressed whether the juror had disobeyed a direction, which could be a ground for discharge if there was misconduct leading to such a mandatory outcome. However, since no such misconduct was alleged, the court examined whether there was another reason affecting the juror’s ability to perform their functions. Based on the snippet of conversation overheard in the street, the court determined that no such reason existed. The court ultimately held that the conduct did not warrant the juror's discharge.

The final orders of the court were that the application to discharge the juror was dismissed, and the trial proceeded as scheduled. The court confirmed that the conduct in question did not give rise to a reasonable apprehension of bias, nor did it constitute misconduct warranting the juror's discharge.

Orders