R v Qaumi & Ors (No 63) [2016] NSWSC 1216

R v Qaumi & Ors (No 63) [2016] NSWSC 1216

The evidence was capable of raising self-defence on counts 1 and 2 and on counts 4 to 16, despite strong Crown arguments against its acceptance, because the scope of the alleged enterprises and the accused's beliefs and responses were questions for the jury and the trial judge should not withdraw a viable defence from the jury. In Mohammed Kalal's case, the evidence of threats and of acting because of those threats was sufficient to leave duress to the jury; whether he knew or ought reasonably to have known he may be compelled, and whether he had a reasonable opportunity to withdraw, were questions of fact for the jury. The manslaughter by unlawful and dangerous act issue was deferred...

Jurisdiction
Australia
Judgment Date
30 August 2016
Procedural Posture
Criminal Trial Procedural and Other Rulings / At the Conclusion of the Prosecution Case
Outcome
Self-defence and duress were to be left to the jury; the manslaughter by unlawful and dangerous act issue was deferred; the Crown would not rely on the identified evidence as tendency evidence.
Legal Topics
['self Defence' 'duress' 'manslaughter by Unlawful and Dangerous Act' 'tendency Evidence' 'joint Criminal Enterprise' 'brothers for Life' 'gangland Violence']
['criminal Law' 'evidence'] ['self Defence' 'duress' 'manslaughter by Unlawful and Dangerous Act' 'tendency Evidence' 'joint Criminal Enterprise' 'brothers for Life' 'gangland Violence']

Case Brief

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Procedural Posture

Criminal Trial Procedural and Other Rulings / At the Conclusion of the Prosecution Case

Legal Issues

  1. 1 ['Whether the Crown could rely on evidence identified as tendency evidence as tendency evidence under the Evidence Act 1995 (NSW).' 'Whether self-defence should be left to the jury for Jamil Qaumi on counts 1 and 2.' 'Whether self-defence should be left to the jury for Farhad Qaumi and Mumtaz Qaumi on counts 1 and 2.' "Whether manslaughter by unlawful and dangerous act should be left to the jury in Jamil Qaumi's case." 'Whether self-defence should be left to the jury on counts 10 to 16 concerning the Chokolatta Café shooting.' 'Whether self-defence should be left to the jury on counts 4 to 9 concerning the Odisho and Zakaria shootings.' "Whether duress should be left to the jury in Mohammed Kalal's case for the Zakaria and Chokolatta Café shootings."]

Ratio Decidendi

The evidence was capable of raising self-defence on counts 1 and 2 and on counts 4 to 16, despite strong Crown arguments against its acceptance, because the scope of the alleged enterprises and the accused's beliefs and responses were questions for the jury and the trial judge should not withdraw a viable defence from the jury. In Mohammed Kalal's case, the evidence of threats and of acting because of those threats was sufficient to leave duress to the jury; whether he knew or ought reasonably to have known he may be compelled, and whether he had a reasonable opportunity to withdraw, were questions of fact for the jury. The manslaughter by unlawful and dangerous act issue was deferred...

Court Disposition

Self-defence and duress were to be left to the jury; the manslaughter by unlawful and dangerous act issue was deferred; the Crown would not rely on the identified evidence as tendency evidence.

Orders

  • ['The defence of self-defence will be put to the jury.' "The defence of duress will be put to the jury in Kalal's case." "The issue of whether manslaughter by unlawful and dangerous act should be put to the jury is deferred until counsel's addresses."]