R v Qaumi (No 62)

[2016] NSWSC 1215

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 62) [2016] NSWSC 1215
Hearing dates:	23-24 August 2016
Date of orders:	23 August 2016
Decision date:	02 September 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	1. The Prothonotary is to contact the Crown Solicitors Office to facilitate the appointment of counsel to act as amicus in contempt proceedings against Jamil Qaumi. 2. The Prothonotary is to provide the Crown Solicitors Office with: (a) A copy of this judgment. (b) A copy of the transcript of proceedings on 23rd and 24th August 2016. 3. Current non-publication orders are varied to facilitated order (2) above. 4. The Crown Solicitors Office should be asked to provide submissions specifically in relation to: (a)The preferred procedure. (b) The correct or best form of the charge and, in particular, whether there should be one charge of contempt with four particulars or four charges of contempt. 5. I vacate the orders made on 23-24 August 2016 adjourning the contempt proceedings until the conclusion of the trial and, in lieu thereof, list the matter for mention at 10am on Tuesday, 20 September 2016.
Catchwords:	CRIMINAL LAW – contempt of court – failure to answer questions – conduct of contempt proceedings.
Legislation Cited:	Supreme Court Rules 1970 (NSW)
Cases Cited:	European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 Trad v Pickles Auction Pty Ltd; In the matter of Carl Trad [2006] NSWSC 1177 In the matter of Steven Smith (No 2) [2015] NSWSC 1141 R v Rudd (unreported, 10 November 1994, NSWSC) Re Lonrho [1990] 2 AC 154
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

1. Jamil Qaumi is standing trial for murder and a number of other charges arising out of his alleged membership of a criminal street gang called the Brothers for Life, Blacktown Chapter. He gave evidence in the trial. On four occasions in the course of that evidence he was charged with contempt of the Supreme Court. On each occasion, the basis of the charge was his refusal to answer questions when directed to do so. No plea was taken and the hearing of the contempt proceedings was stood over until the conclusion of the present trial proceedings.

The First Count of Contempt

2. The first count arose out of evidence given on 23 August 2016. It was unusual in that Mr Qaumi refused to answer a question asked by his own barrister. It became apparent that counsel was aware that this was going to occur. Counsel did not withdraw the question and I directed the accused to answer it. The transcript records the following exchange: [1]

   1. T 5973.

“Q. There was a third person shooting at the garage that night, is that right?

A. Yeah, there was.

Q. Who was that person?

A. I can't answer that question.

HIS HONOUR: Yes, you can.

CARROLL

Q. Who was the person?

A. I can't answer that question.

Q. Why are you saying that you can't answer?

A. Well, if I answer that question everyone's going to call me a dog. I'm in gaol and my life's going to be in danger in gaol.

HIS HONOUR: Mr Qaumi, you are in the witness box on trial for murder. Your counsel is asking you a question that is highly pertinent and you can answer it. I direct you to answer the question. Can you do so, please?

WITNESS: I'm very sorry, your Honour, but I can't answer that question.

HIS HONOUR: All right, members of the jury, we're going to adjourn briefly.”

3. There was discussion in the jury’s absence and counsel was given the opportunity to confer with Mr Qaumi. [2] After adjourning for that purpose, I sought submissions as to why the accused should not be charged with contempt of the Court. [3] Mr Qaumi was then charged as follows: [4]

“Jamil Qaumi, I charge you with being in contempt of the Supreme Court of New South Wales arising out of your wilful failure to answer questions asked of you in the present proceedings when required to do so and when directed by me to do so.”

2. T 5974.

3. T 5974-5975.

4. T 5975.

4. The accused was not asked to enter a plea. Bail was refused and the accused was remanded in custody for the contempt matter to be dealt with at the conclusion of the trial. I note that he is bail refused in relation to the charges for which he is presently standing trial. All of this took place in the absence of the jury.

The Second Charge of Contempt

5. Having been charged with the first count of contempt, I indicated that I proposed to give Mr Qaumi the opportunity to purge the contempt by answering the question when the jury returned. The following is recorded in the transcript: [5]

   5. T 5977-5978.

“IN THE PRESENCE OF THE JURY

HIS HONOUR: Thank you, members of the jury. Mr Qaumi, you remain on the oath you took earlier this morning. Do you understand me?

WITNESS: Yes, your Honour.

HIS HONOUR.

Q. Before the adjournment, Mr Qaumi, you were asked these questions by Ms Carroll:

“Q. There was a third person shooting at the garage that night, is that right?

A. Yeah, there was.

Q. Who was that person?

A. I can't answer that question.

HIS HONOUR: Yes, you can.

CARROLL

Q. Who was the person?

A. I can't answer that question.

Q. Why are you saying that you can't answer?

A. Well, if I answer that question, everyone's going to call me a dog. I'm in gaol and my life's going to be in danger in gaol.

HIS HONOUR: Mr Qaumi, you are in the witness box on trial for murder. Your counsel is asking you a question that is highly pertinent and you can answer it. I direct you to answer that question. Can you do so, please.

WITNESS: I'm very sorry, your Honour, but I can't answer that question.”

By saying, "I can't answer that question", are you really saying that you refuse to answer that question?

A. I can't answer that question, your Honour.

Q. Do you refuse to answer it upon my direction for you to answer it?

A. Yeah, I'm very sorry, your Honour, but I can't answer that question.

Q. I am not interested in your apology. I am asking whether you are refusing to answer the question?

A. Yes, your Honour.

Q. If I ask you again, as Ms Carroll did, who was that person, that is the third person shooting at the garage, what is your answer? I direct you to answer the question.

A. I can't answer that question, your Honour.

HIS HONOUR: Thank you. Ms Carroll, proceed.”

6. At the next adjournment and in the absence of the jury, I asked counsel whether there was any reason that the accused should not be charged with a second count of contempt. He was then charged as follows: [6]

“Following your answers after the short adjournment in which you again refused to answer questions, I am charging you with a further count of being in contempt of the Supreme Court of New South Wales arising out of your wilful refusal to answer questions asked of you in the present proceedings when required to do so.”

6. T 5999.

7. Bail was refused and the contempt proceedings adjourned until the conclusion of the trial.

The Third Count of Contempt

8. The third count arose on 24 August 2016 in the course of cross-examination by the learned Crown Prosecutor. The transcript records the following: [7]

   7. T 6106.

“Q. And you told what you have got to do, you have got to kill LC?

A. That's what my brother wanted, yeah.

Q. And the third shooter is not Witness I?

A. No.

Q. The third shooter is not Witness J?

A. No.

Q. The third shooter is Nasser Zarshoy?

A. I can't answer that question, sir.

CROWN PROSECUTOR MCKAY: I would ask that he answer the question, your Honour.

HIS HONOUR: Yes.

Mr Qaumi, you are being asked a question that has relevance. There has been no objection to it. I direct you to answer the Crown's question.

WITNESS: Yeah, I am very sorry, your Honour, but I can't answer that question. I am in gaol. My life is going to be in danger if I answer that question.

HIS HONOUR: Mr Crown, what do you propose at this stage?

CROWN PROSECUTOR MCKAY: I will move on at the moment, your Honour.”

9. At the next adjournment when the jury retired, counsel was asked whether there was any reason why Mr Qaumi should not be charged with a third count of contempt. He was then charged as follows: [8]

“Based on your refusal to answer the questions and wilfully do so, I again charge you now with a third count of being in contempt of the Supreme Court of New South Wales arising out of your wilful refusal to answer the questions, having been asked them and been directed by me to answer them.”

8. T 6115.

10. He was told that no plea would be taken until the conclusion of the proceedings. Bail was refused and the contempt proceedings adjourned.

The Fourth Count of Contempt

11. The fourth count arose from the following exchange in cross-examination: [9]

“CROWN PROSECUTOR MCKAY

Q. In relation to the shooting, the third shooter, was he a bigger person with a beard?

A. I can't answer that question.

HIS HONOUR: I am going to go through the process. I direct you to answer the question, Mr Qaumi.

WITNESS: Yeah, I can't answer that question, sir, your Honour.

HIS HONOUR: Yes, thank you.”

9. T 6117.

12. At the next adjournment, and in the absence of the jury, counsel was given the opportunity to address the question of why a fourth charge of contempt ought not to be instituted. Jamil Qaumi was charged with a fourth count as follows: [10]

“Being in contempt of the Supreme Court of New South Wales arising out of your wilful refusal to answer a question this afternoon from the Crown Prosecutor to the effect of:

‘Was the third shooter a bigger person with a beard?’

When that question was asked of you, I directed you to answer it and you refused to do so.”

10. T 6135.

13. I went on to say:

“As with the other three charges of contempt, I won't call upon you to plead at this stage. The matter will be adjourned until the conclusion of these trial proceedings and there may be some reformulation of the charge or charges at that time. Thank you, take a seat.”

Conduct of Proceedings

14. It is necessary to make certain directions to ensure the efficient conduct of the hearing of the contempt proceedings.

15. Proceedings for contempt in the face of the court are somewhat unusual and often not the subject of the ordinary adversarial process. Rather, they are disposed of by way of a summary procedure under Part 55 Division 2 of the Supreme Court Rules 1970 (NSW). The summary procedure was described by Kirby P in European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 457-458 as “extraordinary and exceptional, involving as it does a departure from normal curiel procedures and in a case criminal in nature where the penalties are at large”. Usually there is no prosecutor (although the practice varies depending on the manner in which the matter comes before the particular Judge).

16. An alternative to this summary procedure is for the matter to be referred to the Registrar for the institution of contempt proceedings. That is a more appropriate procedure in cases where there may be some controversy surrounding the facts or where it may be necessary for witnesses to be called. The present case is one where the facts are clearly established by reference to the transcript. Whether the refusal to answer in each instance amounts to a contempt is not a matter that requires further evidence.

17. As presently advised, the summary procedure appears to be the most appropriate one in the circumstances of this case. However, I will seek further submission on that issue.

18. In cases where there is no prosecutor, counsel is often briefed to act in an amicus capacity: see, for example, Re Lonrho [1990] 2 AC 154, R v Rudd (unreported, 10 November 1994, NSWSC), Trad v Pickles Auction Pty Ltd; In the matter of Carl Trad [2006] NSWSC 1177 and, most recently, In the matter of Steven Smith (No 2) [2015] NSWSC 1141. In such cases, counsel is briefed by the NSW Crown Solicitors Officer acting on behalf of the Attorney General.

19. In the present case, it is appropriate that counsel be appointed as amicus and I will make certain directions to facilitate that course.

20. It is also appropriate to ensure that the accused is represented and receives advice as to his plea and the procedure that will be adopted. He should also have the opportunity to adduce evidence if appropriate and make submissions. I call on counsel who appears at the trial to indicate whether she is to appear at the contempt hearing and, if not, that she takes steps to ensure the accused receives legal representation as soon as possible.

21. I make the following orders and directions:

1. The Prothonotary is to contact the Crown Solicitors Office to facilitate the appointment of counsel to act as amicus in contempt proceedings against Jamil Qaumi.

2. The Prothonotary is to provide the Crown Solicitors Office with:

1. A copy of this judgment.

2. A copy of the transcript of proceedings on 23rd and 24th August 2016.

3. Current non-publication orders are varied to facilitate order (2) above.

4. The Crown Solicitors Office should be asked to provide submissions specifically in relation to:

1. The preferred procedure.

2. The correct or best form of the charge and, in particular, whether there should be one charge of contempt with four particulars or four charges of contempt.

5. I vacate the orders made on 23-24 August 2016 adjourning the contempt proceedings until the conclusion of the trial and, in lieu thereof, list the matter for mention at 10am on Monday 20 September 2016.

*********

Endnotes

Decision last updated: 24 November 2016