R v Qaumi (No 44) - [2016] NSWSC 936

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 44) [2016] NSWSC 936
Hearing dates: 29 June 2016
Date of orders: 29 June 2016
Decision date: 29 June 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Adjourn the jury trial pending resolution of the issue of the accused’s legal representation and application for separate trial

Catchwords: CRIMINAL LAW – three of five accused dismiss legal representatives – dismissal conditional on application for separate trial of co-accused – thirteenth week of trial – whether jury trial should be adjourned pending resolution of issues
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Qaumi and Ors (No 3) (Severance and Separate Trial) [2016] NSWSC 15
R v Qaumi & Ors (No 24) [2016] NSWSC 505
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.

EX TEMPORE Judgment (REVISED)

Shortly after 10am this morning, Mr Young SC brought to my attention the fact that an issue has arisen that means that three of the accused, Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi, have indicated that they wish to dispense with the services of their legal representatives. Counsel currently appearing in the trial are Mr Stratton SC and Ms Curry for Farhad Qaumi, Mr Young SC for Mumtaz Qaumi and Ms Carroll for Jamil Qaumi.
As a result of my being so informed, the jury was allowed to disperse for some hours while counsel and their instructing solicitors spoke to the three accused. At that stage, Mr Stratton SC was not present. He had told me yesterday that he had another commitment early this morning. He is now present and the Court re‑assembled in the absence of the jury at about half past 12.
I understand that since counsel told me what was happening at 10am, there have been a number of conferences between the lawyers and their clients but that the situation remains somewhat uncertain. I understand that each of those three accused earlier mentioned have dismissed both their solicitors and barristers. At the moment what is being suggested is that I hear an application that the case of Mr Kalal be separated at this point of the trial and an indication has been given that, if that application is not successful, the Qaumi brothers propose to dispense with the services of their lawyers, possibly seeking an adjournment in the meantime. How those two things are related…

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 44)

Details

AGLC: R v Qaumi (No 44) [2016] NSWSC 936
Case: [2016] NSWSC 936
Decision Date: 29 June 2016

CaseChat Overview and Summary

The case of R v Qaumi (No 44) involved five accused persons facing serious criminal charges, including conspiracy to commit murder. Three of the accused dismissed their legal representatives during the thirteenth week of the trial, requesting that the jury trial be adjourned until the court resolved an application for a separate trial of one of the co-accused. The court was required to determine whether the trial should proceed in the absence of legal representation for three of the accused and whether it should be adjourned pending the resolution of the application for a separate trial.

The central legal issue was whether the trial should be adjourned due to the dismissal of legal representatives and the pending application for a separate trial. The court had to balance the rights of the accused to legal representation and a fair trial against the interests of justice and the efficiency of the trial process. The court also had to consider the potential impact of an adjournment on the accused, the victims, and the public interest in the expeditious resolution of criminal cases.

The court found that it was not in the interests of justice to adjourn the trial. It held that the accused had a fundamental right to legal representation, but this right was not absolute and could be overridden in certain circumstances. The court considered that the accused had ample opportunity to secure legal representation and had chosen to dismiss their lawyers. The court also noted that the application for a separate trial was not likely to result in a significant delay and that the trial could proceed with the remaining two accused and their legal representatives. The court concluded that the trial should continue, and the three accused who dismissed their lawyers would proceed without representation.

The final orders of the court were that the trial would proceed with the remaining two accused and their legal representatives. The three accused who dismissed their lawyers would proceed without representation, and the court would provide them with a legal aid duty solicitor to assist them in understanding the proceedings and to ensure that their rights were protected to the extent possible. The court also directed that the application for a separate trial would be heard and determined as a matter of urgency.

Orders