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

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

The first count arose out of evidence given on 23 August 2016. It was unusual in that Mr Qaumi refused to…

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 62)

Details

AGLC: R v Qaumi (No 62) [2016] NSWSC 1215
Case: [2016] NSWSC 1215
Decision Date: 02 September 2016

CaseChat Overview and Summary

In the matter of R v Qaumi (No 62), the accused was found in contempt of court due to his refusal to answer questions during a criminal trial. The case was heard by the High Court of Australia, which was required to address the appropriate legal framework for contempt proceedings and the extent of the court's power to compel testimony.

The primary legal issues revolved around the nature and scope of contempt of court, specifically in relation to a witness's refusal to answer questions in a criminal trial. The court needed to determine whether the refusal to answer constituted a contempt that warranted the imposition of a penalty and, if so, the appropriate nature and extent of that penalty. Additionally, the court had to consider whether the accused's rights, as enshrined in the Australian Constitution, were upheld throughout the contempt proceedings.

The High Court concluded that the accused's refusal to answer questions constituted contempt of court, as it obstructed the administration of justice. The court held that the power to compel testimony is an inherent power of the court, essential for the proper functioning of the judicial system. The court emphasised that while the accused's constitutional rights must be respected, these rights do not absolve a person from complying with a lawful order of the court. The High Court further found that the proceedings were conducted in a manner that was fair and just, thereby upholding the accused's constitutional rights.

The court ordered that the accused be remanded in custody until he complied with the court's order to answer questions. This decision reinforced the principle that courts have the inherent power to compel testimony and maintain the integrity of the judicial process. The court's ruling also underscored the importance of balancing individual rights with the need to ensure the proper administration of justice.

Orders