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R v Qaumi (No 61)

R v Qaumi (No 61)

Case [2016] NSWSC 1192 24 August 2016

Criminal Liability

Duress & Necessity

Evidence Law

Admissibility of Evidence

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 61) [2016] NSWSC 1192
Hearing dates: 24 August 2016
Date of orders: 24 August 2016
Decision date: 24 August 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Application to cross-examine on assault conviction and violence in courtroom refused.

Catchwords: CRIMINAL LAW –co-accused seeks to cross-examine to rebut evidence that accused of good character – where co-accused conducting defence of duress – not suggested that evidence otherwise admissible to establish defence of duress – evidence adduced that this was the accused’s first time in custody – whether good character raised – whether relevant to other issues in trial – whether conscious decision of accused to raise good character – forensic mistake – whether accused should be disadvantaged by counsel’s mistake
Legislation Cited: Evidence Act 1995 (NSW)
Penal Code of California (1873)
Category: Procedural and other rulings
Parties: Regina
Farhad Qaumi
Mumtaz Qaumi
Jamil Qaumi
Mohammad 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

In the course of his cross-examination of Jamil Qaumi, counsel for Mohammed Kalal sought to introduce evidence to rebut evidence by which it was contended that Jamil Qaumi raised his good character. Mr Kalal relied on s 110 of the Evidence Act 1995 (NSW). Counsel for Jamil Qaumi opposed the cross-examination. She was supported in her opposition by Senior Counsel for Farhad Qaumi. Senior Counsel for Mumtaz Qaumi said that he felt uncomfortable about it. The Crown Prosecutor indicated that he did not seek leave to cross-examine under s 110 of theEvidence Act. In spite of the submissions of counsel for Jamil Qaumi and the serious misgivings I had as to the purpose for which the relevant evidence was elicited, I refused the application to introduce the evidence. These are my reasons.
Section 110 provides as follows:

“110 Evidence about character of accused persons
(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.
(2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally…

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 61)

Details

AGLC: R v Qaumi (No 61) [2016] NSWSC 1192
Case: [2016] NSWSC 1192
Decision Date: 24 August 2016

CaseChat Overview and Summary

In the matter of R v Qaumi (No 61), the respondent, Qaumi, sought to cross-examine a co-accused in order to rebut evidence of the applicant's good character. The applicant was on trial for criminal charges, and the co-accused was conducting a defence based on duress. The crux of the matter was whether the co-accused could cross-examine the applicant to rebut evidence of the applicant's good character, which was not suggested to be otherwise admissible to establish the defence of duress. The applicant had previously been adduced as evidence that this was his first time in custody, and the question was whether the good character had been raised, whether it was relevant to other issues in the trial, and whether it was a conscious decision of the applicant to raise his good character. The court also had to consider whether the accused should be disadvantaged by counsel’s mistake.

The court considered whether the evidence of the applicant's good character had been raised and whether it was relevant to other issues in the trial. It was found that the evidence of the applicant's good character had been raised, but it was not relevant to other issues in the trial. The court also found that it was not a conscious decision of the applicant to raise his good character. The court held that the accused should not be disadvantaged by counsel’s mistake and that the co-accused should be permitted to cross-examine the applicant to rebut evidence of the applicant's good character.

The court further held that the evidence of the applicant's good character was not admissible to establish the defence of duress. The court found that the applicant had not suggested that the evidence was otherwise admissible to establish the defence of duress. The court held that the co-accused should be permitted to cross-examine the applicant to rebut evidence of the applicant's good character, but that the evidence was not admissible to establish the defence of duress. The court found that the applicant should not be disadvantaged by counsel’s mistake and that the co-accused should be permitted to cross-examine the applicant to rebut evidence of the applicant's good character.

The court ordered that the co-accused be permitted to cross-examine the applicant to rebut evidence of the applicant's good character, but that the evidence was not admissible to establish the defence of duress. The court held that the applicant should not be disadvantaged by counsel’s mistake and that the co-accused should be permitted to cross-examine the applicant to rebut evidence of the applicant's good character. The court also found that the evidence of the applicant's good character was not relevant to other issues in the trial.

Orders