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R v Qaumi (No 45)

R v Qaumi (No 45)

Case [2016] NSWSC 937 30 June 2016

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Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 45) [2016] NSWSC 937
Hearing dates: 29-30 June 2016
Date of orders: 30 June 2016
Decision date: 30 June 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Application for separate trial is refused.

Catchwords: CRIMINAL LAW – application to separate one of five co-accused – where application made in thirteenth week of trial – retrospective and prospective evaluation of fairness of the proceedings – where co-accused asserts duress – where co-accused relying on evidence of violence and threats of violence by three accused – evidence admissible in Crown case – analogy to cut-throat defence – whether order of cross-examination creates unfairness – threat to withdraw instructions of lawyers – not a relevant consideration – genuine belief in three accused that process unfair – no unfairness when viewed objectively – remedies for forensic disadvantage – whether cross-examination undermining effectiveness of attacks on credibility – resurrecting Lazarus – neutral position of fifth co-accused – “when elephants fight ants stay out of the way” – application refused
Legislation Cited: Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Madubuko v R [2011] NSWCCA 135
R v CE [2005] NSWCCA 326
R v Farrell & Cotton (1990) 48 A Crim R 311
R v Ignjatic(1993) 68 A Crim R 333
R v Pham [2004] NSWCCA 190
R v Qaumi & Ors (No 3) (Severance and Separate Trials) [2016] NSWSC 15
R v Qaumi & Ors (No 6) [2016] NSWSC 115
R v Qaumi & Ors (No 24) NSWSC 505
R v Qaumi & Ors (No 32) [2016] NSWSC 675
R v Qaumi & Ors (No 33) [2016] NSWSC 676
R v Qaumi & Ors (No 39) [2016] NSWSC 797
R v Qaumi & Ors (No 43) [2016] NSWSC 889
R v Qaumi & Ors (No 44) [2016] NSWSC 936
R v Singh (Supreme Court (NSW), Fullerton J, 10 November 2011, unrep)
Webb & 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 Wednesday 29 June 2016, Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi (“the three accused”) each made an application that I make an order that the co-accused Mohammed KalaI be tried separately. The application was made on the 56th day of the trial and continued into Thursday 30 June 2016 (the 57th day). The application…

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 45)

Details

AGLC: R v Qaumi (No 45) [2016] NSWSC 937
Case: [2016] NSWSC 937
Decision Date: 30 June 2016

CaseChat Overview and Summary

The appeal was brought by one of five co-accused in a criminal matter, Qaumi, who sought to be tried separately from the other co-accused. The application was made in the thirteenth week of the trial. The Supreme Court was tasked with evaluating the fairness of the proceedings both retrospectively and prospectively. Qaumi argued duress, claiming violence and threats of violence by three of the other accused, which was admissible in the Crown's case. He compared his situation to the cut-throat defence, suggesting that the order of cross-examination created unfairness. Qaumi also claimed the threat to withdraw legal instructions was not a relevant consideration but highlighted his genuine belief that the process was unfair. The court examined whether cross-examination undermined the effectiveness of attacks on credibility, likening it to resurrecting Lazarus. The fifth co-accused maintained a neutral position, and the court used the analogy "when elephants fight, ants stay out of the way."

The court found that when viewed objectively, there was no unfairness in the proceedings. The court also considered the remedies for any forensic disadvantage Qaumi might face. It concluded that the cross-examination did not undermine the effectiveness of attacks on credibility. The court rejected the notion that withdrawing legal instructions was a relevant consideration. Qaumi's genuine belief in the unfairness of the process did not alter the court's objective assessment. The court ultimately denied the application, finding that the fifth co-accused's neutral stance and the overall fairness of the trial outweighed the concerns raised by Qaumi.

The court emphasised the importance of maintaining the integrity of the judicial process and ensuring that all co-accused receive a fair trial. Given the complexities and the timing of the application, the court found that separating Qaumi would not address the alleged unfairness without causing significant disruption. The court also considered the impact on the other co-accused and the public interest in finality and efficiency in criminal proceedings. The court's decision reflected a balanced approach, weighing the rights of the accused against the broader implications of the application.

The final orders of the court were that the application to separate Qaumi from the other co-accused was refused. The trial continued with all five co-accused being tried jointly. The court directed the parties to proceed with the trial, emphasising the importance of maintaining the integrity and efficiency of the judicial process. The court also noted that any issues regarding credibility and the admissibility of evidence would be addressed during the trial itself. The decision underscored the court's commitment to ensuring that all parties receive a fair trial while also considering the broader implications of such applications.

Orders