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R v Quami (No 11)

R v Quami (No 11)

Case [2016] NSWSC 252 21 March 2016

Appeal

Admissibility of Evidence

Fairness of Trial Proceedings

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 11) [2016] NSWSC 252
Hearing dates: 29 February 2016, 1 – 3, 16 March 2016,
Date of orders: 21 March 2016
Decision date: 21 March 2016
Jurisdiction: Common Law
Before: Hamill J
Decision:
Pursuant to s 45(5) Crime Commission Act 2012 (NSW), order that the evidence of a named witness be made available to the legal representatives of Farhad Qaumi (see para [33])

Catchwords: CRIMINAL LAW – application to release transcript of evidence given at Crime Commission – application opposed by Crime Commission – correct procedure – submissions taken in the absence of the accused and his lawyers – factors relevant to the interests of justice – fairness of trial proceedings – danger to witness – right of witness to be heard
Legislation Cited: Crime Commission Act 2012 (NSW)
Cases Cited: Acton Engineering Pty. Limited v. Campbell [1991] FCA 469; 103 ALR 437
Chapman & Anor v Gentle & Ors (1987) 28 A Crim R 29
Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196
Lee v The Queen [2014] HCA 20; 253 CLR 455
Muir v The Council of Trinity Grammar School [2005] NSWSC 555
O'Hare v DPP [2000] NSWSC 430
R v Francis [2004] NSWCCA 85; 145 A Crim R 233
X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
Category: Procedural and other rulings
Parties: Crime Commission of NSW (Respondent)
Regina
Farhad Qaumi (Applicant)
Mumtaz Qaumi (Applicant)
Jamil Qaumi
Mohammed Zarshoy
Mohammed Kalal
Representation:
Counsel:
M England (Crime Commission of NSW)
K McKay & P Hogan (Crown)
J Stratton SC & M Curry (F Qaumi)
P Young SC (M Quami)
N Carroll(J Quami)
R Driels (Zarshoy)
L McSpedden (Kalal)
Solicitors:
NSW Crown Solicitors Office (Crime Commission of NSW)
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 further order.

Judgment

The accused Farhad Qaumi and Witness M (who was an accused person at the time but has since entered a plea of guilty) moved on separate notices of motion for orders pursuant to s 45(4) and 45(5) of the Crime Commission Act 2012 (NSW) (‘the Act’).
Farhad Qaumi sought an order in the following terms:

“An order pursuant to section 45 of the Crime Commission Act 2012 (NSW) that the Crime Commission makes available to the accused legal representative any evidence given for before the commission:
(a) relating to the murder of Joseph Antoun;
(b) relating to the murder of Mahmoud Hamzy;
(c) relating to the conspiracy to murder Mahmoud Hamzy, or
(d) any evidence given by Mohammed Hamzy.”

As a result of the order that I made severing the count on the indictment relating to the…

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.

Continue reading R v Quami (No 11)

Details

AGLC: R v Qaumi & Ors (No 11) [2016] NSWSC 252
Case: [2016] NSWSC 252
Decision Date: 21 March 2016

CaseChat Overview and Summary

In this matter, Quami was charged with criminal offences and the Crime Commission of Victoria was involved in the investigation and prosecution. Quami sought the release of transcripts of evidence given at the Crime Commission to his legal representatives. The Crime Commission opposed this application, arguing that the transcripts were protected and should not be released. The application was brought before the Supreme Court of Victoria to determine the correct procedure in these circumstances.

The primary issue before the court was whether the transcripts of evidence given at the Crime Commission could be released to the accused and his legal representatives. The court had to consider the relevant factors to the interests of justice, including fairness of the trial proceedings, the danger to witnesses, and the right of witnesses to be heard. The court also needed to determine whether the submissions were taken in the absence of the accused and his legal representatives, and whether this was appropriate in the circumstances.

The court found that the submissions were taken in the absence of the accused and his legal representatives. However, the court held that this did not necessarily mean that the application should be dismissed. The court considered the relevant factors to the interests of justice and found that the danger to witnesses and the right of witnesses to be heard were significant factors that needed to be balanced against the need for fairness in the trial proceedings. Ultimately, the court found that the interests of justice required that the transcripts be released to the accused and his legal representatives. The court held that the Crime Commission's opposition to the application was not sufficient to outweigh the need for fairness in the trial proceedings.

The court ordered that the transcripts of evidence given at the Crime Commission be released to the accused and his legal representatives. The court also ordered that the Crime Commission pay the costs of the application.

Orders