R v Qaumi (No 66) - [2016] NSWSC 1403

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 66) [2016] NSWSC 1403
Hearing dates: 26-27 September 2016
Date of orders: 28 September 2016
Decision date: 04 October 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Jury provided with transcripts of addresses and summing up.

Catchwords: CRIMINAL LAW – jury request for transcripts of addresses and summing up – no provision in Jury Act – discretion to provide – long and complex trial – careful and thorough addresses – where summing up canvassed many legal issues – discretion exercised to comply with jury request
Legislation Cited: Jury Act 1977 (NSW)
Cases Cited: R v Bartle & Ors [2003] NSWCCA 329
R v Sukkar [2005] NSWCCA 54
R v Taousanis [1999] NSWSC 107
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 26 September 2016, on the second day of the summing up, the jury sent a note (MFI 239) in the following terms:

“Your Honour, the jury would like to request the barristers' closing addresses, Corinne Khamis' transcript and his Honour's closing summation upon its completion. This is a non-urgent request. Could the jury have several copies of the closing addresses, please? Would it also be possible to have several more copies of the Elements of the Offences document, please? Thank you.”

The jury were provided with the transcript of the evidence of the witness and with further copies of the document setting out the elements of the offences. There was no contrversy surrounding those requests. The jury has already been provided with a good deal of transcript. The request for provision of the addresses and summing up created more controversy.
Ultimately, all parties, except Mohammad Zarshoy, supported the supply of the transcripts to the jury. [1] In opposition to providing the transcripts, counsel for Mr Zarshoy submitted:

“Fundamentally it would appear to me that the jury have been told on numerous occasions it is the evidence before them that should be the basis of their consideration of the matter and not the actual arguments that have been put forward, unless they request to hear a particular portion, it would seem to me that it would lead the jury into arguments as opposed to assessing the evidence as such. The Jury Act itself talks about evidence going in. I understand that it has been done in 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 66)

Details

AGLC: R v Qaumi (No 66) [2016] NSWSC 1403
Case: [2016] NSWSC 1403
Decision Date: 04 October 2016

CaseChat Overview and Summary

The case of R v Qaumi (No 66) involved the respondent, Qaumi, who was on trial for serious criminal charges. The jury, during the trial, requested transcripts of the closing addresses made by both the prosecution and the defence, as well as the summing up provided by the judge. This request was unusual and not provided for under the Jury Act. The court was required to determine whether it had the discretion to provide these transcripts and, if so, whether it should exercise that discretion in the circumstances of this case.

The primary legal issue before the court was whether it had the discretion to provide the jury with transcripts of the closing addresses and summing up, despite there being no statutory provision for such a request. The court also needed to consider whether the exercise of this discretion was appropriate given the nature and complexity of the trial, as well as the thoroughness of the addresses and summing up.

The court determined that, while there was no explicit statutory provision allowing for the provision of transcripts of closing addresses and summing up, there was an implicit discretion to do so in exceptional circumstances. Given the length and complexity of the trial, and the fact that the summing up covered numerous legal issues, the court exercised its discretion to provide the jury with the requested transcripts. The court found that this action was necessary to ensure that the jury could properly consider all the evidence and legal arguments presented during the trial.

The final orders of the court were to provide the jury with the transcripts of the closing addresses and summing up as requested, in order to assist them in their deliberations and to ensure a fair trial. This decision underscored the importance of the court's discretion in exceptional circumstances to facilitate a just outcome in complex cases.

Orders