Supreme Court
New South Wales
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 99Category: 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
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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.
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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].…
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- AGLC
- R v Qaumi (No 56) [2016] NSWSC 1130
- Case
- [2016] NSWSC 1130
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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