Medium Neutral Citation: R v Qaumi & Ors (No 56) [2016] NSWSC 1130
Hearing dates: 15 August 2016
Date of orders: 16 August 2016
Decision date: 18 August 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
(1) The individual juror be discharged;
(2) The trial to continue with a reduced number of jurors (13).

Catchwords: CRIMINAL LAW – application to discharge individual juror – misconduct – reasonable apprehension of bias – other reasons affecting juror’s ability to perform functions of a juror – relevance of judge’s observations of juror’s conduct – whether judge’s observations “evidence before the court” – “autoptic proference” – repeated smiling and staring at particular accused – where another accused is conducting a defence of duress – where duress involved threats alleged to come from accused subject of the juror’s particular attention – risk of substantial miscarriage of justice – where previous application to discharge juror failed – importance of random selection of jury – reluctance of judge to interfere with random selection
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Jury Act 1977 (NSW)
Cases Cited: Bailiff v R [2011] ACTCA 7
Evans v The Queen [2007] HCA 59; 72 ALJR 250
R v Qaumi & Ors (No 36) [2016] NSWSC 718
R v Qaumi & Ors (No 41) [2016] NSWSC 857
R v Qaumi & Ors (No 55) [2016] NSWSC 1068
RP v R [2015] NSWCCA 215
RP v R [2016] HCATrans 162
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; 81 FCR 71
Webb and Hay v The Queen [1994] HCA 30; 181 CLR 41
Wu v The Queen [1999] HCA 52; 199 CLR 99
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 16 August 2016 I ordered that a particular juror be discharged and that the trial continue with a reduced number of jurors (13). These are my reasons for those decisions.
On 23 June 2016, I refused an application by the Crown, supported by the accused Mohammed Kalal, that the juror be discharged: R v Qaumi & Ors (No 41) [2016] NSWSC 857. That application was based on the evidence of a number of police officers and the solicitor instructing the learned Crown Prosecutor in the trial. The evidence is set out in the judgment, for example at [15], [18], [19], [20], [25], [26], [28]-[29].…

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 56)

Details

AGLC: R v Qaumi (No 56) [2016] NSWSC 1130
Case: [2016] NSWSC 1130
Decision Date: 18 August 2016

CaseChat Overview and Summary

The case of R v Qaumi (No 56) involved a criminal trial where an application was made to discharge a juror on the basis of misconduct and potential bias. The application was made during the trial, and the court was required to consider the circumstances surrounding the juror's conduct. The court had to decide whether the juror's actions amounted to misconduct that could result in a reasonable apprehension of bias, or whether there were other reasons that affected the juror's ability to perform their functions impartially. Additionally, the court needed to determine whether the judge's observations of the juror's conduct could be considered as evidence before the court, and if so, whether such observations could constitute an "autoptic proference."

The court considered the evidence and the arguments presented by both parties. It was noted that the juror had repeatedly smiled and stared at one of the accused during the trial, which was particularly concerning given that the other accused was conducting a defence of duress involving threats allegedly coming from the accused who was the subject of the juror's attention. The court found that the risk of a substantial miscarriage of justice was present due to the juror's conduct. Despite a previous application to discharge the juror having been unsuccessful, the court was reluctant to interfere with the random selection of the jury but recognised the importance of ensuring a fair trial. Ultimately, the court determined that the juror's conduct warranted their discharge.

The court discharged the juror and ordered a replacement to be selected. The court emphasised the importance of maintaining the integrity of the jury system and the need to ensure that jurors perform their duties impartially. The court also noted the reluctance to interfere with the random selection process but recognised that exceptional circumstances could justify such action to prevent a miscarriage of justice.

Orders