R v Qaumi & Ors (No 39)

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.