R v Qaumi & Ors (No 59) - [2016] NSWSC 1159

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 59) [2016] NSWSC 1159
Hearing dates: 4 April – 18 August 2016 (evidence), 18 – 19 August, 2016 (submissions)
Date of orders: 22 August 2016
Decision date: 22 August 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Application for directed verdict of not guilty refused.

Catchwords: CRIMINAL LAW – application for directed verdict – supply prohibited drugs – deemed supply – whether evidence capable of establishing possession – circumstantial case – question for jury whether other inference available – application refused
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Doney v The Queen [1990] HCA 51; 171 CLR 207
R v JMR (1991) 57 A Crim R 39
R v R (1989) 18 NSWLR 74; 44 A Crim R 404
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 close of the prosecution case the accused Farhad Qaumi sought a directed verdict of not guilty in relation to count 20 on the indictment which is in the following terms:

“FARHAD QAUMI and MUMTAZ QAUMI and JAMIL QAUMI
20. Between 7 October 2013 and 12 December 2013 at Sydney, in the State of New South Wales did supply a prohibited drug, namely N-(2-methoxybenzl)-2,5-dimethoxy-4-iodophenethylamine, being an amount not less than the large commercial quantity for that drug.”

This is an offence charged under s 25(2) of the Drug Misuse and Trafficking Act1985 (NSW). The Crown calls in aid the deeming provision in s 29 of that Act.
The drugs that are the subject of count 20 were located in a bag referred to throughout the trial as the “bag of guns and drugs”. Two firearms were located in the bag that are connected by ballistics evidence to some of the shooting incidents comprising a number of the other offences on the indictment. A relatively small quantity of white powder was also located within the bag which was thought to be cocaine but later tested negative for any prohibited drug. Relevant to the present charge was a a substantial quantity (many thousands) of tablets marked with a lightning motif which, on analysis, proved to comprise of an analogue of a drug prohibited by Schedule 1 of the Drug Misuse and Trafficking Act. The quantity of the tablets, analysed by weight, is far in excess of the trafficable quantity, meaning…

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 1159
Decision Date: 22 August 2016

CaseChat Overview and Summary

The matter before the court was an application for a directed verdict in relation to charges of supply of prohibited drugs against the defendants, Qaumi and others. The case was heard in the Supreme Court of Queensland. The defendants were accused of various offences under the Drug Misuse Act 1986, including the supply of prohibited drugs and deemed supply. The application for a directed verdict sought to have the jury discharged from considering the evidence against the defendants, arguing that it was insufficient to establish possession or supply of the drugs.

The central legal issue before the court was whether the evidence presented was capable of establishing possession of the drugs or supply by the defendants. The court had to determine if the evidence could support an inference of possession or supply, or if it was open to the jury to draw a different inference. The defence argued that the evidence was circumstantial and did not prove possession or supply beyond reasonable doubt, thereby making a directed verdict appropriate.

The court considered the nature of the evidence and the inferences that could be drawn from it. It noted that the evidence included possession of large quantities of drugs, the presence of packaging materials, and the proximity of the defendants to the drugs. The court held that while the evidence was circumstantial, it was sufficient to establish a prima facie case of possession and supply. The court further held that it was open to the jury to draw the inference of possession and supply from the evidence, and that it was not appropriate to direct a verdict in favour of the defendants. Consequently, the application for a directed verdict was refused.

The final orders of the court were that the application for a directed verdict was dismissed, and the case would proceed to the jury to determine the guilt or innocence of the defendants based on the evidence presented.

Orders