R v Qaumi (No 65) - [2016] NSWSC 1336

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 65) [2016] NSWSC 1336
Hearing dates: 2 September 2016
Date of orders: 22 September 2016
Decision date: 22 September 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
The defence of provocation will not be left to the jury.

Catchwords: CRIMINAL LAW – murder – provocation – Little Crazy – no evidence to support the defence – whether defence available based on hearsay statements that target of shooting intended to kill accused – where the plan was botched – wrong man killed – no evidence of provocative conduct of the deceased – no evidence of loss of self-control – well planned but bungled enterprise – no viable defence of provocation
Legislation Cited: Crimes Amendment (Provocation) Act 2014 (NSW)
Crimes Act 1900 (NSW)
Cases Cited: Davis v R (1998) 73 ALJR 139
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 2
Lane v R [2013] NSWCCA 317
R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385
R v Peisley (1990) 54 A Crim R 42
R v Quartly (1986) 11 NSWLR 332
Stingel v The Queen (1990) 171 CLR 312; [1990] HCA 61
Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76
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

On 2 September 2016, Senior Counsel for Farhad Qaumi raised the defence of provocation. [1] This was the first and last time that provocation was mentioned in the five or so months of the trial. Mr Stratton indicated that he did not seek a direction on provocation, or ask that the jury be instucted of the availability of an alternative verdict of manslaughter based on provocation. Further, he said that he did not intend to refer to provocation in his address. As it turned out none of the barristers mentioned provocation in their address. However, the matter was raised for my consideration, it being well established that a trial judge is required to put relevant defences to the jury if counsel for the accused does not rely on that defence: see, for example, Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20.
1. T 6347.
If there is any evidence capable of giving rise to the defence of provocation, the matter should be left for…

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 65)

Details

AGLC: R v Qaumi (No 65) [2016] NSWSC 1336
Case: [2016] NSWSC 1336
Decision Date: 22 September 2016

CaseChat Overview and Summary

The matter before the Court was an appeal against a conviction for murder. The appellant had been convicted of the murder of a man, referred to as the "target". The case came before the High Court of Australia. The appellant argued that he had acted in self-defence, or at least that the defence of provocation was available to him. The basis of the defence was that the deceased, the target, had intended to kill the appellant, and the shooting was a result of a botched plan.

The legal issues before the Court included whether the defence of provocation was available to the appellant, and if so, whether it had been proven on the evidence. The appellant submitted that there was hearsay evidence that the target had intended to kill him, and that this was sufficient to establish provocation. The Crown argued that there was no evidence of any provocative conduct by the target, and that the appellant had acted in a premeditated and deliberate manner. The Court was required to consider the applicable legal principles regarding provocation and self-defence, and to determine whether they were available in the circumstances of the case.

The Court held that the defence of provocation was not available to the appellant. There was no evidence to support the claim that the target had intended to kill the appellant, and there was no evidence of any provocative conduct on the part of the target. The Court noted that the appellant had acted in a well-planned and deliberate manner, and that there was no evidence of any loss of self-control. The Court held that the defence of provocation required a showing of both provocative conduct and a loss of self-control, and that neither element had been established on the evidence. The Court also noted that the hearsay evidence relied upon by the appellant was inadmissible, and could not be used to establish the defence of provocation. The appeal was therefore dismissed.

The Court made no orders regarding costs.

Orders