R v Qaumi (No 46) - [2016] NSWSC 938

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 46) [2016] NSWSC 938
Hearing dates: 19 July 2016
Date of orders: 19 July 2016
Decision date: 19 July 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Subject to the deletion of one word from one of the medical certificates, the evidence is admissible.

Catchwords: CRIMINAL LAW – objection to evidence – evidence of increased lead levels in victim’s blood – expert evidence that lead levels caused by shotgun pellets lodged in body of the victims – whether evidence speculative or reasoning circular – whether improper assumptions made - risk of infertility from lead toxicity – whether unfairly prejudicial – extent of probative value to issue of whether injuries constituted grievous bodily harm – gender balance of jury – high probative value – evidence allowed
Legislation Cited: Evidence Act 1995 (NSW)
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 the sixty ninth day of the trial, counsel for the accused, Mohammed Kalal objected to part of the evidence to be led from two doctors (Dr Collins and Dr Gunja) concerning the injuries and disabilities sustained by the victim (H) [1] of a shooting incident that gives rise to count 9 on the indictment. I ruled that the evidence of Dr Collins was not admissible but that the evidence of Dr Gunja was admissible. These are my reasons for those rulings.
1. H is a child.
There is no dispute that on 4 November 2013 H received wounds from at least one gunshot and that, as a result, a large number of shotgun pellets were lodged in her body. While some of the pellets were removed surgically many remained (and remain) in her body. The evidence to which objection was taken concerned opinions given by the doctors that the pellets contained lead and evidence by Dr Gunja as to the medical consequences of that fact.
In the case of Dr Collins, the issue was straightforward. His certificate merely stated that H “was known to have lead pellets behind L5”. There was no evidence as to the basis of his opinion that the pellets were lead and no evidence that he had expertise sufficient for him to proffer that opinion. Accordingly, I ruled that the reference to “lead” should be removed. There was no further objection to his certificate and the certificate was admitted in…

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 46)

Details

AGLC: R v Qaumi (No 46) [2016] NSWSC 938
Case: [2016] NSWSC 938
Decision Date: 19 July 2016

CaseChat Overview and Summary

In the case of R v Qaumi, the accused was facing criminal charges arising from a series of shootings that resulted in injuries to multiple victims. The trial court was required to determine the admissibility of evidence concerning elevated lead levels in the victims' blood, as well as the impact of these findings on the severity of the injuries sustained. The primary legal issues revolved around whether the expert evidence was speculative, whether it involved circular reasoning, whether there were improper assumptions, and whether the probative value of the evidence outweighed any prejudicial effect it might have on the jury.

The court examined the nature of the expert evidence provided by a toxicologist, who testified that the increased lead levels in the victims' blood were attributable to shotgun pellets lodged in their bodies. The court considered whether this evidence was speculative and whether it involved circular reasoning. The court also assessed whether the expert made improper assumptions regarding the risk of infertility from lead toxicity and whether the evidence was unfairly prejudicial. The court concluded that the evidence had a high probative value in determining whether the injuries constituted grievous bodily harm, which was a key issue in the case. The court found that, despite some concerns about the evidence, its probative value was significant enough to outweigh any prejudicial effect it might have had on the jury.

The court allowed the evidence to be admitted, noting that the risk of unfair prejudice to the accused was mitigated by the gender balance of the jury, which included both male and female members. The court determined that the probative value of the evidence was sufficient to support its admission, and it would be up to the jury to weigh this evidence alongside other factors in reaching their verdict. The court's decision was based on a careful balancing of the probative value of the evidence against the potential for prejudice, and it was ultimately satisfied that the evidence could assist the jury in making an informed decision on the key issues in the case.

Orders