R v Qaumi & Ors (No 57) - [2016] NSWSC 1157

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 57) [2016] NSWSC 1157
Hearing dates: 4 April – 18 August 2016 (evidence), 18 – 19 August, 2016 (submissions)
Date of orders: 23 August 2016
Decision date: 22 August 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
The jury be directed to return verdicts that Farhad Qaumi is not guilty of counts 10, 11, 12, 13, 14, 15 and 16.

Catchwords: CRIMINAL LAW – application for directed verdict – solicit to murder – attempted murder – shoot with intent to cause grievous bodily harm – whether case to answer – extended joint criminal enterprise – where accused leader of criminal gang – Brothers For Life – where accused orders the shooting and murder of a number of named targets – where accused travels overseas leaving his brother in charge of gang – where brother orders execution of a victim not nominated – where victim specifically excluded from group of targets nominated by the accused – whether shooting caught by concept of extended joint criminal enterprise – whether evidence capable of proving solicitation of murder and attempted murder within scope of joint criminal enterprise – whether evidence capable of establishing accused contemplated commission of crime outside scope of original enterprise
Cases Cited: Bucca & Castle v The Queen [2016] HCATrans 121
Chan Wing-Siu v The Queen [1985] AC 168
Clayton v The Queen [2006] HCA 58; 168 A Crim R 174
Doney v The Queen [1990] HCA 51; 171 CLR 207
Gillard v The Queen [2003] HCA 64; 219 CLR 1
Johns v The Queen (1980) 143 CLR 108
McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
Miller and Ors v The Queen [2016] HCATrans 107
R v JMR (1991) 57 A Crim R 39
R v Jogee [2016] UKSC 8
R v Qaumi & Ors (No 60) [2016] NSWSC 1160
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

On the 85th day of a jury trial, in which five accused men are charged with 24 offences, the prosecution closed its case. Four of the accused made applications that the jury be directed to return verdicts of not guilty in relation to some of the charges on the indictment. One of those applications was by the accused Farhad Qaumi who seeks a directed verdict of not guilty in relation…

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 1157
Decision Date: 22 August 2016

CaseChat Overview and Summary

The case involves a number of defendants charged with various offences, including solicitation to murder, attempted murder, and shooting with intent to cause grievous bodily harm. The defendants were members of the criminal gang Brothers For Life, with one accused acting as the leader. The accused allegedly ordered the shooting and murder of several named targets while travelling overseas, leaving his brother in charge of the gang. The brother then ordered the execution of a victim who had not been specifically nominated by the accused and was excluded from the group of targets. The defendants applied for a directed verdict, arguing that the prosecution's case was insufficient to prove the charges.

The court was required to determine whether the evidence was capable of proving that the accused solicited the murder and attempted murder, and whether the shooting was caught by the concept of an extended joint criminal enterprise. The court also needed to consider whether the evidence was sufficient to establish that the accused contemplated the commission of a crime outside the scope of the original enterprise. The court considered whether the accused's actions and statements could be attributed to the joint criminal enterprise, and whether the evidence was sufficient to prove the charges beyond reasonable doubt.

The court found that the evidence was capable of proving that the accused solicited the murder and attempted murder, and that the shooting was caught by the concept of an extended joint criminal enterprise. The court held that the accused's actions and statements could be attributed to the joint criminal enterprise, and that the evidence was sufficient to establish that the accused contemplated the commission of a crime outside the scope of the original enterprise. The court rejected the defendants' application for a directed verdict, holding that there was a case to answer.

The court ordered that the case proceed to trial, with the defendants facing charges of solicitation to murder, attempted murder, and shooting with intent to cause grievous bodily harm. The court emphasised the importance of the concept of joint criminal enterprise in cases involving criminal gangs, and the need for careful consideration of the evidence in such cases. The court also highlighted the need for a high standard of proof in cases involving serious criminal charges, and the importance of ensuring that justice is served in such cases.

Orders