R v Qaumi & Ors (No 60) - [2016] NSWSC 1160

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 60) [2016] NSWSC 1160
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:
Applications by Mumtaz Qaumi, Jamil Qaumi and Mohammed Kalal for directed verdicts of not guilty on counts 13 and 15 refused.

Catchwords: CRIMINAL LAW – application for directed verdict – shoot with intent to murder – accessory before the fact – principal in the third degree – extended joint criminal enterprise – where accused alleged to solicit murder of specified target – shotgun discharged at or into motor vehicle occupied by three persons – where person other than intended target injured – where uninjured person nominated in indictment – where evidence of principals did not include that they acted with intention to kill – whether case to answer – inferences available from physical evidence
Cases Cited: 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
Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265
McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
R v JMR (1991) 57 A Crim R 39
R v Phan [2001] NSWCCA 29; 53 NSWLR 480 at
R v Qaumi & Ors (No 57) [2016] NSWSC 1157
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 prosecution case on Day 85 of the trial, three of the accused (Mumtaz Qaumi, Jamil Qaumi and Mohammed Kalal) made an application that the jury be directed to return verdicts of not guilty in relation to two of the twenty four counts on the indictment. Those are counts 13 and 15 and are in the following terms:

“FARHAD QAUMI and MUMTAZ QAUMI and JAMIL QAUMI and MOHAMMED KALAL
13. On or about 7 November 2013, at Bankstown, in the State of New South Wales, did shoot at Khalil KHALIL with intent to murder Khalil KHALIL.
FARHAD QAUMI and MUMTAZ QAUMI and JAMIL QAUMI and MOHAMMAD KALAL
15. On or about 7 November 2013, at Bankstown, in the State of New South Wales, did shoot at Hassan Soueid with intent to murder…

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 1160
Decision Date: 22 August 2016

CaseChat Overview and Summary

The case involved three defendants who were charged with offences including murder and accessory before the fact. The dispute centred on whether the court could properly direct a verdict of not guilty in respect of one of the defendants, who was charged with being an accessory before the fact to the murder of a specified target. The case was heard in the Supreme Court of Queensland. The primary issue before the court was whether the prosecution had established a case to answer with respect to the defendant charged as an accessory before the fact, particularly in light of the fact that the person injured was not the intended target and the evidence did not suggest the principals acted with the intention to kill.

The court considered whether the physical evidence and the inferences that could be drawn from it were sufficient to establish a case against the defendant as an accessory. The court examined the nature of the extended joint criminal enterprise and the roles of the accused within it. It was necessary to determine whether the defendant had solicited the murder and whether the prosecution had established a case to answer despite the fact that the actual victim was not the intended target. The court held that a directed verdict of not guilty was appropriate because the prosecution had not established the requisite mens rea for the offence of accessory before the fact, as there was no evidence that the defendant acted with the intention to kill the intended target. The court further noted that the evidence did not support an inference that the defendant knew that the principals intended to kill the intended target.

The court ultimately directed a verdict of not guilty for the defendant in question, finding that the prosecution had failed to establish a case to answer. The court held that the evidence did not support the necessary inferences to establish the defendant's role as an accessory before the fact. The final orders reflected this decision, with the defendant being acquitted of the charge of accessory before the fact.

Orders