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 41Category: Procedural and other rulings Parties: Regina
Farhad Qaumi
Mumtaz Qaumi
Jamil Qaumi
Mohammed Zarshoy
Mohammed KalalRepresentation: Counsel:
Solicitors:
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)
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…
Continue reading R v Qaumi (No 45)
Sign in free to access the full text
- AGLC
- R v Qaumi (No 45) [2016] NSWSC 937
- Case
- [2016] NSWSC 937
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.