CRIMINAL LAW – trial by judge alone – application by accused opposed by the Crown – interests of justice – relevant factors – prejudicial material – media coverage – measures available to ensure jury not affected by prejudicial publicity – prejudicial material to be adduced in the trial – where evidence will establish earlier killing by same accused – part of evidence led as tendency evidence – evidence subject to objection – whether mode of trial influences question of admissibility of evidence – which issue should be determined first – chicken or egg – where accused raised self-defence in respect of the earlier killing – difficulties in formulating directions – accused required to re-run its defence of self-defence – forensic minefield – where jury currently deliberating on charges arising out of earlier killing – risk of two juries coming into contact – measures incapable of eliminating risk – public houses – problems in delaying commencement of trial – where trial Judge made previous rulings on credibility and character of witnesses – enigmatic submission by Crown – no application or basis for recusal or disqualification – application granted
Farhad Qaumi and Mumtaz Qaumi are charged with the murder of Joseph Antoun. Farhad Qaumi is also charged with possessing an unauthorised firearm. The firearm in the second count is the firearm that was allegedly used in the murder. Both accused men apply for a “trial by judge order” under s 132 of the Criminal Procedure Act 1986 (NSW) (“the Act”). Leave is not required because the applications were made within the 28 day time limit provided by s 132A of the Act. The Crown opposes a trial by judge alone.
The count alleging the murder of Joseph Antoun was originally part of an indictment alleging 36 offences against nine accused. All of those offences arose out of the involvement of the accused in a group known as the Brothers for Life Blacktown Chapter (BFL Blacktown). The original indictment encompassed around ten shooting incidents that took place between July and December 2013. The last incident was the Antoun murder. Applications for separate…
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
AGLC
R v Qaumi & Qaumi [2016] NSWSC 1473
Case
[2016] NSWSC 1473
Decision Date
CaseChat Overview and Summary
The case of R v Qaumi & Qaumi involved two defendants who faced charges related to criminal activities. The dispute centred on an application by the accused to be tried by a judge alone rather than by a jury. The Crown opposed the application, and the court had to consider whether the application should be granted in the interests of justice. The case was heard in the Supreme Court of Queensland.
The primary legal issues the court had to decide were whether the mode of trial should influence the admissibility of certain evidence and whether the interests of justice required the application to be granted. The defendants argued that the prejudicial material, which included media coverage and evidence of an earlier killing by one of the accused, would make it difficult to secure a fair trial by jury. The Crown, on the other hand, opposed the application on the basis that the prejudicial material could be managed by appropriate measures and that the prejudicial nature of the evidence should not determine the mode of trial.
The court considered the various factors that needed to be weighed in determining whether the application should be granted. It noted that the prejudicial material, including the evidence of an earlier killing, was a significant factor. The court found that the measures available to ensure the jury would not be affected by the prejudicial publicity were not sufficient to eliminate the risk. Additionally, the court recognised that the accused had raised a self-defence plea in respect of the earlier killing, which would need to be re-run if the case was tried by a judge alone. The court also noted the difficulties in formulating directions for a judge-alone trial in such a complex case. Ultimately, the court granted the application, considering that the interests of justice required the case to be tried by a judge alone.
The final orders of the court were that the application by the accused to be tried by a judge alone was granted. The case would proceed with a judge presiding over the trial, taking into account the prejudicial material and the complexities of the case.