R v Qaumi & Ors (No 32) - [2016] NSWSC 675

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 32) [2016] NSWSC 675
Hearing dates: 25 May 2016
Date of orders: 25 May 2016
Decision date: 25 May 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Leave granted to Jamil Qaumi to further cross-examine witness

Catchwords: CRIMINAL LAW – trial procedure – joint trial – order of cross-examination – where accused alleging duress cross-examining last – fairness to other accused – whether further cross-examination should be permitted – skilful and committed interrogators – limitations on further examination – fairness to both accused
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: Browne v Dunn (1893) 6 R 67
R v Qaumi and Ors (No 3) (Severance and separate trial) [2016] NSWSC 15
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

At the conclusion of the cross examination of a witness to whom I will refer as Witness G, I granted leave to Counsel for Jamil Qaumi to ask a limited number of further questions in cross-examination after the conclusion of cross-examination by counsel for the accused Mohammed Kalal. These are my reasons for granting that leave.
Witness G gave evidence relevant to the formation of the Brothers for Life organisation which is said by the Crown to be a criminal group for the purpose of s 93T of the Crimes Act 1900 (NSW). It was in the context of a “turf war” between two chapters of that group that a number of shooting offences, including an offence of murder and a number of offences of attempting to murder, were allegedly committed. There are five accused currently on trial.
Jamil Qaumi is alleged to have been one of the shooters in the murder offence and an active participant in a number of the other offences. Along with his two brothers, he is alleged to have directed the activities of the criminal group. The manner in which the case has preceded to this point supports the conclusion that his interests are almost entirely aligned with the interests of his two older brothers who are charged with similar offences. Each of the older brothers is represented by Senior Counsel of significant skill and experience. The trial of the five accused is proceeding together: R v Qaumi and Ors (No 3) (Severance and separate trial) [2016] NSWSC 15.
Mohammed Kalal is not alleged to have been…

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.

Keep reading for free

Create a free CaseChat account to read R v Qaumi & Ors (No 32) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWSC 675
Decision Date: 25 May 2016

CaseChat Overview and Summary

In the case before the court, three individuals, Qaumi, Y and Z, faced charges of drug trafficking. The defendants were granted a joint trial, but Y and Z sought separate representation. The issue before the court was whether it was fair to allow Qaumi, who was alleging duress, to cross-examine the last prosecution witness. Y and Z argued that this order of cross-examination would unfairly prejudice their case. The court considered whether the order of cross-examination could be altered to ensure fairness to all parties.

The court acknowledged that the order of cross-examination in a joint trial could potentially create an unfair situation for some defendants. However, in this case, the court found that the defendants were represented by skilful and committed legal counsel who were able to effectively advocate for their clients' interests. The court also noted that there were limitations on the extent to which further cross-examination could be conducted. Ultimately, the court determined that the order of cross-examination was fair to all parties involved.

The court found that the order of cross-examination was fair, as the defendants' legal representatives were able to effectively advocate for their clients' interests, and the limitations on further examination were reasonable. The court also noted that the fairness of the trial process must be balanced against the need to ensure an efficient and effective trial. The court concluded that the joint trial was fair and that the order of cross-examination did not unfairly prejudice any of the defendants.

No further orders were made by the court. The joint trial proceeded as scheduled, with Qaumi cross-examining the last prosecution witness. The court's decision to allow the joint trial and the order of cross-examination was upheld.

Orders