R v Qaumi (No 58) - [2016] NSWSC 1158

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 58) [2016] NSWSC 1158
Hearing dates: 4 April – 18 August 2016 (evidence), 18 – 19 August 2016 (submissions)
Date of orders: 22 August 2016
Decision date: 22 August 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Applications by Farhad Qaumi and Mumtaz Qaumi for a directed verdict of not guilty on count 18 are refused.

Catchwords: CRIMINAL LAW – application for directed verdict – whether evidence capable of establishing charge – joint criminal enterprise – bungled enterprise – Little Crazy’s mother – gangland war – Brothers for Life – whether crime actually committed part of agreed criminal enterprise – where accused allegedly directed shooting of one townhouse – where shooter shoots a person and a different townhouse in the same townhouse complex – whether original criminal enterprise came to an end – where Crown case weak or tenuous – limited power to direct a verdict of not guilty
Cases Cited: Doney v The Queen [1990] HCA 51; 171 CLR 207
McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
R v JMR (1991) 57 A Crim R 39
R v Qaumi & Ors (No 57) [2016] NSWSC 1157
R v Qaumi & Ors (No 59) [2016] NSWSC 1159
R v Qaumi & Ors (No 60) [2016] NSWSC 1160
R v R (1989) 18 NSWLR 74
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

At the close of the prosecution case Farhad Qaumi and Mumtaz Qaumi submitted that the jury should be directed to return a verdict of not guilty in respect of count 18 which is in the following terms:

“On or about 29 November 2013, at Greenacre in the State of New South Wales, did, in the course of an organised criminal activity, fire a firearm at a dwelling house or other building with reckless disregard for the safety of others.”

The trial involves five accused charged, in various combinations, with a total of 24 offences and has been proceeding for well in excess of four months. There have been several other applications for directed verdicts and judgments in respect of each have been published at the same time as this judgment: R v Qaumi & Ors (No 57) [2016] NSWSC 1157; R v Qaumi & Ors (No 59) [2016] NSWSC 1159 and R v Qaumi & Ors…

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.

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Details

Case: [2016] NSWSC 1158
Decision Date: 22 August 2016

CaseChat Overview and Summary

The appellant, Qaumi, was convicted for his role in a series of events related to a gangland war involving the Brothers for Life gang. The incident in question involved the shooting of a townhouse, which resulted in the death of an individual and damage to a separate townhouse in the same complex. Qaumi applied for a directed verdict, arguing that the evidence was insufficient to establish the charge against him. The central issues for the court were whether the evidence could establish the appellant's guilt, and if the crime was part of an agreed criminal enterprise. Additionally, the court had to consider whether the original criminal enterprise had concluded and whether the Crown's case was weak or tenuous.

The court held that the evidence was capable of supporting a conviction for the appellant's involvement in the shooting. The court found that the original criminal enterprise continued, and the shooting was part of the same criminal plan. The court emphasised that the evidence was sufficient to support a conviction, even if the Crown's case was weak or tenuous. The court noted that the power to direct a verdict of not guilty was limited, and it was not appropriate to exercise it in this case. The court concluded that the evidence was sufficient to establish the appellant's guilt and rejected the application for a directed verdict.

The court's reasoning was based on the principle that a directed verdict should only be granted if the evidence is so weak that no reasonable jury could convict the accused. The court found that the evidence, while weak in some aspects, was still sufficient to establish the appellant's guilt beyond reasonable doubt. The court also considered the concept of joint criminal enterprise, and whether the crime was part of an agreed plan. The court found that the evidence supported the conclusion that the crime was part of the same criminal plan, and the appellant's role in it. The court rejected the appellant's argument that the original criminal enterprise had concluded, and found that the evidence supported the conclusion that the crime was part of the same criminal plan.

The final orders of the court were to dismiss the appellant's application for a directed verdict, and to confirm his conviction for his role in the shooting of the townhouse. The court found that the evidence was sufficient to establish the appellant's guilt beyond reasonable doubt, and that the application for a directed verdict should be dismissed. The court emphasised the limited power of the court to direct a verdict of not guilty, and found that it was not appropriate to exercise it in this case. The court's decision confirmed the appellant's conviction for his role in the shooting, and rejected his application for a directed verdict.

Orders