R v Qaumi & Qaumi (No 2) - [2016] NSWSC 1487

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Qaumi (No 2) [2016] NSWSC 1487
Hearing dates: 18 October 2016
Date of orders: 20 October 2016
Decision date: 20 October 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
The tendency evidence is admissible.

Catchwords: CRIMINAL LAW – tendency evidence – accused charged with murder – crown case that accused engaged particular person to shoot victim – undisputed evidence that accused had on a previous occasion engaged the same person to shoot a different person – whether tendency evidence – where motive for shootings completely different – first shooting committed in self-defence – second shooting alleged contract killing – Brothers for Life – whether tendency alleged of too general a nature – whether particulars of tendency artificially constructed – significant probative value – prejudicial effect on accused – high hurdle for admissibility – where trial by Judge alone – less capacity to cause prejudice – probative value substantially outweighs prejudical effect evidence may have – evidence admissible
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: DAO v R [2011] NSWCCA 63
Elomar v R [2014] NSWCCA 303
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Harriman v the Queen (1989) 167 CLR 590; [1989] HCA 50
IMM v The Queen [2016] HCA 14
Hughes v R [2015] NSWCCA 330
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7
R v Droudis (No 13) [2016] NSWSC 1350
R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306;
R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177
R v Lockyer (1996) 89 A Crim R 457
R v NK (No 3) [2015] NSWSC 1257
R v Qaumi & Qaumi [2016] NSWSC 1473
R v Qaumi & Ors (No 3) (Severance and Separate trial) [2016] NSWSC 15
R v Qaumi & Ors (No 6) [2016] NSWSC 115
Sokolowskyj v R (2014) 239 A Crim R 528; [2014] NSWCCA 55
The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
Category: Procedural and other rulings
Parties: Regina
Farhad Qaumi
Mumtaz Qaumi
Representation:
Counsel:
K McKay (Crown)
J Stratton SC & M Curry (F Qaumi)
P Young SC (M Quami)
Solicitors:
Solicitor for the NSW DPP(Crown)
Archbold Legal (F Qaumi)
George Sten & Co (M Quami)

File Number(s): Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260
Publication restriction: No publication until the conclusion of the trial.

Judgment

The accused are charged with the murder of Joseph Antoun. The murder charge, which was severed from an indictment containing 36 counts, is to be subject of a trial scheduled to commence next Monday, 24 October 2016 (“the Antoun trial”). That date was determined by reference to the conclusion of the trial (or commencement of jury deliberations) in respect of a number of the other charges on…

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 1487
Decision Date: 20 October 2016

CaseChat Overview and Summary

The case before the court involved two brothers, the Qaumi brothers, charged with the murder of a man. The dispute centered around the admissibility of certain tendency evidence in the trial. The case was heard in a court in Australia.

The legal issues before the court were whether the tendency evidence was relevant and admissible in the case. The accused argued that the evidence was too general and that the particulars of the tendency were artificially constructed. They further argued that the prejudicial effect of the evidence outweighed its probative value. The court needed to determine if the evidence could be admitted despite these concerns.

The court considered the principles of tendency evidence and the balance between probative value and prejudicial effect. It noted that the tendency evidence was not too general, as it related directly to the accused's involvement in hiring someone to carry out a shooting. The court found that the probative value of the evidence substantially outweighed its prejudicial effect, especially given that the trial was conducted by a judge alone, reducing the potential for prejudice. Consequently, the court ruled that the evidence was admissible.

The final orders of the court were that the tendency evidence was admissible in the trial. The evidence related to the accused's prior engagement of the same person to carry out a shooting was deemed relevant and could be considered by the court in determining the guilt or innocence of the accused. The court's decision allowed the prosecution to present the evidence, which was deemed to have significant probative value in establishing the accused's involvement in the murder.

Orders