R v Qaumi & Ors (No 24) - [2016] NSWSC 505

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 24) [2016] NSWSC 505
Hearing dates: 21-22 April 2016
Date of orders: 26 April 2016
Decision date: 26 April 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
(1) The evidence that Mr Kalal seeks to adduce, as set out in the particulars (MFI 25) and Ex VD 25, 26 and 27, is inadmissible.
(2) The applications for separate trial by Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi do not arise.
(3) I decline to make an order for separation or postponement of Mr Kalal’s trial of my own motion.

Catchwords:
CRIMINAL LAW – evidence – evidence relevant to defence of duress and the question of intention – evaluation of probative value – where prejudicial to co-accused – whether danger of unfair prejudice substantially outweighs probative value – gangland violence – turf war – where evidence ruled inadmissible when sought to be introduced by the prosecutor – different considerations when sought to be adduced as part of the defence case – where large body of other evidence going to the issue of duress – whether probative value thereby diminished – evidence excluded – whether exclusion of evidence should result in a separate trial – factors relevant to determination of separate trial application
CRIMINAL PROCEDURE – case management provisions – defence reply inadequate and misleading – obligation on legal practitioners to comply with statutory provisions – significant waste of community resources – interruption and delay of jury trial.
Legislation Cited: Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Garrett v The Queen [1997] HCA 67; 139 CLR 477
IMM v The Queen [2016] HCA 14
R v Baker & Ward [1992] 2 Cr App R 335
R v CE [2005] NSWCCA 326
R v Hasan [2005] UKHL 22; [2005] Cr App R 22
R v Nguyen [2008] 181 A Crim R 72
R v Rogerson & McNamara (No 3) [2015] NSWSC 965
R v Rogerson & McNamara (No 45) [2016] NSWSC 452
R v Qaumi & Ors (No 3) (Severance and Separate Trials) [2016] NSWSC 15
R v Qaumi & Ors (No 6) [2016] NSWSC 115
R v Qaumi & Ors (No 23) [2016] NSWSC 429
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

Five accused are currently on trial charged with 24 offences arising out of their alleged involvement in…

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.

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Details

Case: [2016] NSWSC 505
Decision Date: 26 April 2016

CaseChat Overview and Summary

In the matter of R v Qaumi & Ors (No 24), the court was tasked with addressing several legal issues related to the admission of evidence in a criminal trial involving allegations of gangland violence. The defendants were accused of participating in a turf war, with the prosecution seeking to introduce evidence relevant to the defence of duress and the question of intention. The court had to determine whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice to the defendants. The evidence in question pertained to gangland violence and the defendants' alleged involvement in a turf war. The prosecution argued that the evidence was necessary to establish the context and intent behind the alleged criminal activities. However, the court ruled that the evidence was inadmissible when introduced by the prosecution due to the risk of unfair prejudice to the co-accused. The court considered different factors when evaluating the admissibility of the same evidence when sought to be introduced as part of the defence case. The defence presented a substantial body of other evidence related to the duress defence, which the court found diminished the probative value of the contested evidence. Consequently, the court excluded the evidence from being considered by the jury. The court also addressed the issue of whether the exclusion of the evidence warranted a separate trial. The court examined various factors relevant to the determination of a separate trial application, ultimately deciding against it. Additionally, the court dealt with procedural matters concerning the management of the case. The court found the defence's reply to be inadequate and misleading, resulting in a significant waste of community resources and the interruption and delay of the jury trial. The court emphasised the importance of legal practitioners complying with statutory provisions to avoid such issues in future proceedings.

Orders