R v Qaumi (No 42)

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 42) [2016] NSWSC 887
Hearing dates: 27 June 2016
Date of orders: 27 June 2016
Decision date: 27 June 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
The question is disallowed.

Catchwords: CRIMINAL LAW – objection by accused to cross-examination of roll-over witness by co-accused – witness participated in shooting – questioning concerning witness’s belief as to person on whose behalf he was acting – question not asked to establish truth of witness’s belief – whether relevant to co-accused defence of duress – evidence not relevant – if relevant, evidence would be excluded in exercise of discretion
Legislation Cited: Evidence Act 1995 (NSW)
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.

EX TEMPORE Judgment (revised)

Mr Clarke, on behalf of Mr Kalal, seeks to ask this question at the conclusion to a series of questions about the fact that his client was acting essentially at the direction of Jamil Qaumi:

“In your mind, who were you doing the shooting for?”

Senior Counsel for Farhad Qaumi objects to that question. He submits that the evidence is not relevant to any issue in the trial.
Mr Clarke has indicated that he is not seeking to elicit the answer to establish the truth of the answer. If that be the case, there seems to be no relevance to the answer. The question is directed to the witness's belief and I cannot see any use for the evidence if it is not because the witness genuinely held the belief [presumably that he was “doing the shooting for” Farhad Qaumi].
Going beyond that, ultimately what this witness believed that he was doing does not rationally impact upon the probabilities concerning the issues that arise in Mr Kalal's case. In particular, establishing that somebody else may have believed that they were doing the shooting for Farhad Qaumi, who was the leader or the “general” of the group, does not establish that Mr Kalal held the belief. That is so even if it is accepted - although it was not articulated in argument - that if an order came from Farhad Qaumi there was more reason to be terrified and to act upon the order because of his reputation and earlier actions instilling fear and intimidation in the group.
Having regard to the provisions of the Evidence Act 1995 (NSW) as to relevance, I do not find the evidence to be relevant. Even if it does have some peripheral relevance, I would exclude it under s 135 of the Evidence Act because of its potential prejudicial effect in the case of the co-accused Farhad Qaumi.
There is ample material adduced in Mr Clarke’s cross-examination (without objection) in the past short while upon which he may be able to found certain submissions in respect of the issues to which he says this question goes. An answer to that last question, particularly if not directed to the truth of the witness' belief, will not advance that cause in any meaningful way, so its probative value is slight and its danger of unfair prejudice to Mr Qaumi is significant.
The question is disallowed.

**********

CaseChat Overview and Summary

The case of R v Qaumi (No 42) involved a complex criminal dispute that was heard by the High Court of Australia. The central issue in the case was the objection by the accused to the cross-examination of a witness, who had participated in a shooting, by the co-accused. The central question before the court was whether the questioning concerning the witness's belief as to the person on whose behalf he was acting was relevant to the co-accused's defence of duress. The court had to determine whether the evidence in question was relevant, and if it was, whether it would be excluded in the exercise of the court's discretion.

The court examined the legal issues surrounding the admissibility of the evidence and the rights of the co-accused to cross-examine the witness. The central issue was whether the evidence of the witness's belief as to the person on whose behalf he was acting was relevant to the co-accused's defence of duress. The court held that the question was not asked to establish the truth of the witness's belief, and that the evidence was not relevant to the co-accused's defence. Even if the evidence was relevant, the court would have excluded it in the exercise of its discretion.

The court's reasoning was based on the principle that evidence is only admissible if it is relevant to the issues in the case. The court held that the evidence in question was not relevant to the co-accused's defence of duress, as the question was not asked to establish the truth of the witness's belief. Furthermore, the court held that even if the evidence was relevant, it would have excluded it in the exercise of its discretion, as it would have been prejudicial to the co-accused. The outcome of the case was that the objection by the accused to the cross-examination of the roll-over witness by the co-accused was upheld, and the evidence in question was not admitted.

The final orders of the court were that the objection by the accused to the cross-examination of the roll-over witness by the co-accused was upheld, and the evidence in question was not admitted. The court's decision was based on the principle that evidence is only admissible if it is relevant to the issues in the case, and that even if the evidence was relevant, it would have been excluded in the exercise of the court's discretion. The outcome of the case was that the co-accused's defence of duress was not bolstered by the evidence in question, and the accused was able to maintain their objection to the cross-examination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	R v Qaumi & Ors (No 42) [2016] NSWSC 887
Hearing dates:	27 June 2016
Date of orders:	27 June 2016
Decision date:	27 June 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	The question is disallowed.
Catchwords:	CRIMINAL LAW – objection by accused to cross-examination of roll-over witness by co-accused – witness participated in shooting – questioning concerning witness’s belief as to person on whose behalf he was acting – question not asked to establish truth of witness’s belief – whether relevant to co-accused defence of duress – evidence not relevant – if relevant, evidence would be excluded in exercise of discretion
Legislation Cited:	Evidence Act 1995 (NSW)
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.