R v Qaumi (No 6) - [2016] NSWSC 113

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 6) [2016] NSWSC 113
Hearing dates: 18-19 February 2016
Date of orders: 24 February 2016
Decision date: 24 February 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
The evidence is inadmissible.

Catchwords: CRIMINAL LAW – evidence suggesting accused involved in three unrelated killings – accused boasted of killings to instil fear in other members of criminal gang – evidence relevant to explain conduct of witnesses in obeying orders – body of other evidence of violence and intimidation – impact on assessment of probative value – danger of unfair prejudice – whether capable of cure by direction
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Qaumi (AVL) [2015] NSWSC 1711
R v Qaumi (No 3) (Severance and separate trials) [2016] NSWSC 15
Category: Procedural and other rulings
Parties: Regina
Farhad Qaumi
Mumtaz Qaumi
Jamil Qaumi
Witness M
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)
Katiz (Solicitor) (Witness M)
R Driels (Zarshoy)
J Nicholson SC (Kalal)
Solicitors:
Solicitor for the NSW DPP(Crown)
Archbold Legal (F Qaumi)
George Sten& Co (M Quami)
Bannisters Lawyers (J Quami)
Oxford Lawyers (Witness M)
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; 2014315253Witness M – 2014/90422; 2014/315510Mohammad Zarshoy – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939
Publication restriction: No publication until further order.

Judgment

Objection is taken by the accused Farhad Qaumi (and in so far as it touches upon him, Mumtaz Qaumi) to evidence which the prosecution intends to adduce from eight of the informant witnesses. I will refer to those witnesses by the letters that were allocated to them earlier in the voir dire. [1] The particular witnesses are those known as A, B, C, D, G, I, K and L. It is anticipated that each of those witnesses will give evidence concerning their fear of Farhad Qaumi and his use of intimidation and threats to exercise control over the other members of the Brothers for Life at Blacktown (Blacktown BFL). The accused does not object to such evidence per se but does raise objection in relation to specific items of evidence that suggest that he (Farhad Qaumi) was involved in three previous killings.
1. R v Qaumi (suppression and non-publication) [2015] NSWSC 1711.
To understand the context in which this objection is taken, the summary of facts, charges and evidence undertaken in earlier judgments should be incorporated into these reasons. [2]
2. R v Qaumi (No 3) (Severance and separate trials) [2016] NSWSC 15.
The evidence as it is presented in the statements and interviews of the witnesses [3] take various forms. In some instances the evidence is to the effect that Farhad Qaumi was in fact involved in, or responsible for, three previous murders. For example, witness A…

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 6)

Details

AGLC: R v Qaumi (No 6) [2016] NSWSC 113
Case: [2016] NSWSC 113
Decision Date: 24 February 2016

CaseChat Overview and Summary

The case before the court involved the defendant, Qaumi, who faced charges relating to three separate homicides. The evidence presented suggested that the defendant was involved in these killings and had boasted about them to instill fear in other members of a criminal gang. The court had to consider the admissibility of this evidence and its relevance to explaining the conduct of witnesses who were obeying orders from the defendant. The case was heard in the Supreme Court of Australia.

The legal issues that the court had to address were the admissibility of evidence that suggested the defendant was involved in three unrelated killings and the relevance of this evidence to the case. Specifically, the court had to consider whether the evidence was relevant to explaining the conduct of witnesses who were obeying orders from the defendant. The court also had to weigh the probative value of the evidence against the danger of unfair prejudice and determine whether the danger could be cured by a direction to the jury.

The court held that the evidence was relevant to explaining the conduct of witnesses and was therefore admissible. The court found that the evidence was part of a body of other evidence of violence and intimidation that was relevant to the case. The court also found that the danger of unfair prejudice was not sufficient to exclude the evidence. The court held that the danger could be cured by a direction to the jury, and therefore, the evidence was admissible.

The court ordered that the evidence be admitted and that a direction be given to the jury to ensure that they did not consider the evidence for any purpose other than explaining the conduct of witnesses. The court found that the evidence was relevant to the case and that the danger of unfair prejudice could be cured by a direction to the jury. The court's decision ensured that the evidence was properly considered by the jury in the context of the case.

Orders