R v Qaumi (No 43) - [2016] NSWSC 889

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 43) [2016] NSWSC 889
Hearing dates: 27 June 2016
Date of orders: 27 June 2016
Decision date: 27 June 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Application to ask further questions in cross-examination granted.

Catchwords:
CRIMINAL LAW – joint trial – application to ask further questions in cross-examination – where co-accused raising defence of duress – where evidence not led in chief emerge during cross-examination after conclusion of cross-examination – fairness to accused required opportunity to put his case – no unfairness to co-accused – application granted
CRIMINAL LAW – joint trial – application to ask further questions in cross-examination – where co-accused raising defence of duress – when counsel puts one version and co-accused puts alternative version – where both versions contained in statement – where evidence left in state of uncertainty and confusion – whether unfair – application granted
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Qaumi & Ors (No 23) [2016] NSWSC 429
R v Qaumi & Ors (No 24) [2016] NSWSC 505
R v Qaumi & Ors (No 32) [2016] NSWSC 675
R v Qaumi & Ors (No 39) [2016] NSWSC 797
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 or towards the end of cross-examination of Witness I[1] by Mr Clarke on behalf of the accused Mohammed Kalal, Ms Carroll (counsel for Jamil Qaumi) and Mr Stratton SC (counsel for Farhad Qaumi) sought leave or permission to undertake further cross-examination of the witness. I allowed limited further cross-examination over the objection of Mr Clarke. These are my reasons for doing so.
1. Orders have been made to protect the identity of a number of informant witnesses: R v Qaumi and Ors (No 9) (Court Closure) [2016] NSWSC 171.
I have previously been called upon to consider a similar application by Jamil Qaumi in the course of the evidence of Witness G: R v Qaumi & Ors (No 32) [2016] NSWSC 675. I have also considered applications by Farhad Qaumi for orders under s 42 of the Evidence Act 1995 (NSW) preventing Mr Clarke from asking leading questions: R v Qaumi & Ors (No 39) [2016] NSWSC 797. In those decisions I made observations about the order of cross-examination and the forensic advantages and disadvantages which arise in this case where the…

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 43)

Details

AGLC: R v Qaumi (No 43) [2016] NSWSC 889
Case: [2016] NSWSC 889
Decision Date: 27 June 2016

CaseChat Overview and Summary

The appeal before the court involved the accused, Qaumi, and another individual who faced criminal charges and were jointly tried. Qaumi sought leave to ask additional questions in cross-examination concerning the co-accused’s defence of duress. The crux of the matter lay in whether Qaumi should be allowed to further explore this defence, which had been introduced through the co-accused’s evidence during cross-examination but was not part of their original statement.

The primary legal issue the court had to address was whether it was fair to Qaumi to permit additional cross-examination after the initial cross-examination had concluded. The court needed to balance Qaumi’s right to a fair trial with the co-accused’s right to present their defence. The court also considered whether the co-accused would be prejudiced if Qaumi was allowed to ask further questions. This balance was crucial, particularly since the co-accused's defence of duress was not initially disclosed, leading to a state of uncertainty and confusion.

The court held that Qaumi was entitled to ask further questions to clarify the co-accused’s defence of duress, which had emerged during the cross-examination. The court reasoned that it was essential for fairness to Qaumi to have the opportunity to put his case adequately. The court found that the co-accused would not be unfairly prejudiced by allowing additional cross-examination. The co-accused’s defence was already known to them, and any confusion in the evidence was due to the introduction of new information during cross-examination. Therefore, the court granted the application, allowing Qaumi to ask further questions to clarify the defence of duress presented by the co-accused.

Orders