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R v Qaumi (No 64)

R v Qaumi (No 64)

Case [2016] NSWSC 1269 13 September 2016

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Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 64) [2016] NSWSC 1269
Hearing dates: 6 September 2016
Date of orders: 07 September 2016
Decision date: 13 September 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
1. Confirm decision that defence of duress be left to the jury in the case of Mohammed Kalal.
2. Written directions to jury re-formulated.

Catchwords: CRIMINAL LAW – defence of duress – the domain of the common law – whether defence applies to offences of attempted murder – Brothers for Life – where accused voluntarily joins criminal group – where group involved in violent activity – where leaders use intimidation to assert authority over members – whether defence available to accused involved in a criminal gang – whether defence available to accused who voluntarily places himself where he may be subject to coercion – whether test is objective or subjective – nature of limitation – absence of authority in Australia – whether United Kingdom authority should be followed – where UK approach might operately harshly – more flexible approach preferred.
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Act 1961 (NZ)
Crimes Act 1958 (Vic)
Criminal Code (RSC) 1985
Criminal Code 1899 (Qld)
Criminal Code Act 1924 (Tas)
Criminal Code Act 1983 (NT)
Criminal Code Act Compilation Act 1913 (WA)
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 (M Zarshoy)
G Clarke (M Kalal)
Solicitors:
Solicitor for the NSW DPP(Crown)
Archbold Legal (F Qaumi)
George Sten & Co (M Quami)
Bannisters Lawyers (J Quami)
Zahr Lawyers (M Zarshoy)
Hallak Law (M 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 – 2014/316236Mohammed Kalal - 2013/344739; 2014/66939
Publication restriction: No publication until the conclusion of the trial.

Judgment

In the State of New South Wales, the defence of duress is a creature of the common law. In many jurisdictions the defence has been codified or modified by legislative enactment. [1] A controversy has arisen in the present case surrounding the precise content of the defence of duress. Insofar as they exist, the authorities on the issue are either not binding or flawed. As Lord Wilberforce said, as he considered the scope of the defence of duress in Director of Public Prosecutions for Northern Ireland v Lynch (1975) 61 CR App R 6; [1975] AC 653, at 684-685:

“We are here in the domain of the common law: our task is to fit what we can see as principle and authority to the facts before us, and it is no obstacle that these facts are new. The judges have always assumed responsibility for deciding questions of principle relating to criminal liability and guilt, and particularly for setting the standards by which the…

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 64)

Details

AGLC: R v Qaumi (No 64) [2016] NSWSC 1269
Case: [2016] NSWSC 1269
Decision Date: 13 September 2016

CaseChat Overview and Summary

In the case of R v Qaumi (No 64), the accused faced charges of attempted murder and was involved in activities with a criminal gang known as Brothers for Life. The crux of the dispute centred on the applicability of the defence of duress to the charges. The case was brought before the High Court of Australia, which was tasked with determining whether the accused could successfully invoke the defence of duress when he voluntarily joined a criminal organisation known for its violent activities and where the leaders used intimidation to maintain control over the members.

The primary legal issue was whether the defence of duress could be applied to offences such as attempted murder when the accused voluntarily joins a criminal group and subsequently finds himself in a position where he is compelled to commit crimes under threat of violence. A secondary issue was the nature of the test for duress: whether it should be objective, focusing on the circumstances as they would appear to a reasonable person, or subjective, taking into account the individual’s capacity to resist the threats.

The court found that the defence of duress, while traditionally a matter of common law, could be applicable even in cases involving criminal gangs, provided certain conditions were met. The court emphasised that while duress could be a mitigating factor, it was not available to those who voluntarily placed themselves in a position where they could be subject to coercion. The court adopted a flexible approach, considering both the objective and subjective elements of the defence. It concluded that while the UK approach might operate harshly in some circumstances, a more nuanced and flexible application of the defence was appropriate in Australia. The court ultimately determined that the accused could not rely on the defence of duress for the charges of attempted murder.

Orders