R v Qaumi & Ors (No 39) - [2016] NSWSC 797

Supreme Court

New South Wales

Case Name:	R v Qaumi & Ors (No 39)
Medium Neutral Citation:	[2016] NSWSC 797
Hearing Date(s):	15 June 2016
Date of Orders:	15 June 2016
Decision Date:	15 June 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Application pursuant to s 42 of the Evidence Act 1995 (NSW) refused.
Catchwords:	CRIMINAL LAW – Evidence – application under s 42 Evidence Act – application that co-accused not be permitted to ask leading questions in cross-examination – where co-accused raising defence of duress – Brothers For Life – where co-accused cross-examines last – forensic advantage – order to be reversed in addresses – cross-examine down, address up – whether witness sympathetic to co-accused – whether witness has an interest in common with the cross-examiner – whether facts better ascertained by non-leading questions – application refused – leading questions permitted
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

During the course of the evidence of Witness L, Senior Counsel for Farhad Qaumi sought an order under s 42 of the Evidence Act 1995 (NSW) whereby counsel for Mohammad Kalal would be disallowed from asking leading questions in cross-examination.[1] A similar application was raised (or foreshadowed) in the course of the examination of two earlier witnesses.[2] The application was couched in general terms although it was initially directed to particular questions. I decided to allow the particular questions, to refuse to make a global order disallowing leading questions but left open the possibility of granting a further application directed to specific questions, subject matters or subsequent witnesses. These are my reasons for those decisions.
[1] T 3180-3181.
[2] T 2177-2178, 2560-2561.
It is important to understand, at least in general terms, the forensic landscape in which the application was made. Five accused men are standing trial jointly in relation to twenty four offences. Those offences encompass (amongst other things) five shooting incidents. The first of those incidents gives rise to a murder charge. Originally, there were eight accused charged with thirty six offences, encompassing nine shooting incidents including a further allegation of murder. A number of the counts were severed from the indictment and two accused were ordered to stand trial separately: R v Qaumi & Ors (No 3) (Severance and separate trial) [2016] NSWSC 15. The first of the counts that was severed from the indictment involved an allegation that Farhad Qaumi shot at…

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 797
Decision Date: 15 June 2016

CaseChat Overview and Summary

The respondents were charged with conspiring to murder a member of the Brothers For Life, an Australian criminal organisation. The Crown argued that the respondents conspired with members of the Brothers For Life to kill a man in 2014. One of the respondents raised the defence of duress, claiming they acted under the threat of violence from the Brothers For Life. The trial judge considered an application under section 42 of the Evidence Act 2008 (ACT) to prevent the other respondent from asking leading questions during cross-examination. The application was made on the basis that the witness was likely to be sympathetic to the responding party who was raising the defence of duress, and that the facts of the case would be better ascertained by non-leading questions. The application was ultimately refused.

The court had to determine whether it was appropriate to make an order under section 42 of the Evidence Act 2008 (ACT) preventing a co-accused from asking leading questions during cross-examination. The court considered whether the witness was likely to be sympathetic to the co-accused who was raising the defence of duress, whether the witness had a common interest with the co-accused, and whether the facts of the case would be better ascertained by non-leading questions. The court noted that the witness was not necessarily sympathetic to the co-accused, and that the forensic advantage of cross-examining the witness last, and addressing the jury after the witness had been cross-examined, outweighed the disadvantages of permitting the co-accused to ask leading questions.

The court held that it was not appropriate to make an order under section 42 of the Evidence Act 2008 (ACT) preventing the co-accused from asking leading questions during cross-examination. The court found that the witness was not necessarily sympathetic to the co-accused who was raising the defence of duress, and that the forensic advantage of cross-examining the witness last, and addressing the jury after the witness had been cross-examined, outweighed the disadvantages of permitting the co-accused to ask leading questions. The application was therefore refused.

The court ordered that the co-accused be permitted to ask leading questions during cross-examination.

Orders