171 CLR 207
R v JMR (1991) 57 A Crim R 39
R v R (1989) 18 NSWLR 74
Source
Original judgment source is linked above.
Catchwords
171 CLR 207
R v JMR (1991) 57 A Crim R 39
R v R (1989) 18 NSWLR 74
Judgment (2 paragraphs)
[1]
Judgment
At the close of the prosecution case the accused Farhad Qaumi sought a directed verdict of not guilty in relation to count 20 on the indictment which is in the following terms:
"FARHAD QAUMI and MUMTAZ QAUMI and JAMIL QAUMI
20. Between 7 October 2013 and 12 December 2013 at Sydney, in the State of New South Wales did supply a prohibited drug, namely N-(2-methoxybenzl)-2,5-dimethoxy-4-iodophenethylamine, being an amount not less than the large commercial quantity for that drug."
This is an offence charged under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The Crown calls in aid the deeming provision in s 29 of that Act.
The drugs that are the subject of count 20 were located in a bag referred to throughout the trial as the "bag of guns and drugs". Two firearms were located in the bag that are connected by ballistics evidence to some of the shooting incidents comprising a number of the other offences on the indictment. A relatively small quantity of white powder was also located within the bag which was thought to be cocaine but later tested negative for any prohibited drug. Relevant to the present charge was a a substantial quantity (many thousands) of tablets marked with a lightning motif which, on analysis, proved to comprise of an analogue of a drug prohibited by Schedule 1 of the Drug Misuse and Trafficking Act. The quantity of the tablets, analysed by weight, is far in excess of the trafficable quantity, meaning that any person in possession of those drugs is deemed to have been in possession for the purpose of supply unless the accused establishes on the balance of probabilities that they had the drugs for some other purpose. The quantity of the drugs also exceeds, by a substantial degree, the amount specified in the schedule as a large commercial quantity relevant to those drugs.
Farhad Qaumi's case is that he was not in possession of the drugs. There is no suggestion, as I understand it, that he was in possession for some lawful purpose.
Senior Counsel for Farhad Qaumi submitted that there was no evidence capable of establishing possession of these particular drugs by his client. He conceded that there was some evidence from a witness (known as Witness G), that at a time prior to 7 October 2013 Farhad Qaumi provided a number of tablets with a lightning bolt imprint. However, it was submitted that there was no evidence capable of establishing beyond reasonable doubt that the drugs referred to by Witness G were the same drugs that were found in the bag of guns and drugs.
Senior Counsel referred to the evidence of Witness A who surrendered the bag to police in December 2013. It was submitted that there was no evidence connecting Farhad Qaumi with that bag. Even if the evidence was capable of establishing a connection to the bag, or other items within the bag, the evidence did not suggest that Farhad Qaumi knew that the bag contained the drugs subject of count 20. As I understood the submission, the suggestion was that Farhad Qaumi's interest in the bag (which is disputed but which the jury might find on the available circumstantial evidence) related to the guns that were found in the bag. Even if the evidence was capable of establishing that Farhad Qaumi had some knowledge of the contents of the bag, including the tablets, knowledge alone was not enough. Accordingly, it was submitted that there was no case to go to the jury that Farhad Qaumi was in possession of the drugs for the purpose of supply. I am unable to accept that submission and have concluded that there is evidence capable of establishing count 20 against Farhad Qaumi beyond reasonable doubt.
The Crown referred to the evidence of Witness I who gave evidence of drug dealing within the group. He referred to tablets that were "light orange or pink" and which had a lightning bolt on them and there is evidence that he "got them from Farhad when I needed it" [1] . The evidence of when this occurred was rather vague but it was "at least a couple of months I think, month or two" after the first meeting of the group. The first meeting was "around June, July" of 2013. Witness I gave evidence that he got the pills from Farhad and passed them on to other members of the group who would sell them. The money would come back, the witness took "30% per cent of the cut" and the rest went to Farhad.
Reference was also made to the evidence of Witness A who described pills with a lightning bolt logo that were sold by other members of the group. He gave evidence of hearing a conversation involving Farhad Qaumi in which Mr Qaumi said "that any time he wanted more pills come see him". [2]
Reliance was also placed on the evidence of Witness C. [3] He gave evidence of receiving the bag from Jamil Qaumi who told him that it contained guns and "thousands of pills". He and Witness A took the bag from Jamil Qaumi and Witness A took the bag with him. The evidence of Witness A is that he went away for a period and when he returned he contacted the police and showed them where he had hidden the bag. Witness C gave evidence of Farhad asking about the whereabouts of Witness A. This was after Farhad returned from overseas. Other evidence in the case gives rise to an inference that Mumtaz Qaumi was making attempts to retrieve the bag of guns and drugs.
There is evidence of telephone intercepts on 5 December 2013. [4] Witness J and Farhad Qaumi were parties to some of these calls. Witness J said that some of these calls related to Farhad Qaumi's attempt to contact Witness A (that is, the person in whose physical custody the bag was supposed to be).
Taken as a whole, this evidence is capable of supporting an inference that Farhad Qaumi was taking steps to locate Witness A and the bag of guns and drugs.
Finally, there is evidence in a listening device recording made in the Wyong police station cells after the arrest of Farhad Qaumi and Mumtaz Qaumi. This recording is open to the interpretation that the two brothers were referring to the contents of the bag of guns and drugs in such a way as to suggest that they were aware of the contents of the bag and were attempting to construct an innocent explanation (that it contained steroids) for Mumtaz Qaumi's (recorded) attempt to recover it.
In R v R (1989) 18 NSWLR 74; 44 A Crim R 404, the NSW Court of Criminal Appeal considered the question of when a trial Judge has the power to direct a jury to return a verdict of not guilty. Gleeson CJ (with whom Maxwell and Wood JJ agreed) rejected a line of authorities suggesting that a trial Judge may direct a verdict of guilty if they form the view that a verdict of not guilty would be unsafe and unsatisfactory. The Court accepted that the narrower view was correct and held that that:
"A judge should only direct an acquittal if [they conclude] that there is no evidence upon which a jury properly directed could properly convict. It is sometimes expressed by saying that the question is whether there is evidence on which the accused could lawfully be convicted."
The power to intervene if the verdict is unsafe or unsatisfactory (i.e. unreasonable and unable to be supported on the evidence) is reserved to the Court of Criminal Appeal.
As conceded by the accused in his submissions at [5], the trial Judge is required to take the Crown case at its highest. Reference was made to the decision of the High Court in Doney v The Queen [1990] HCA 51; 171 CLR 207 where it was said at 214:
"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."
In a case based on circumstantial evidence, it has been held that the question of whether the Crown has negatived all other reasonable inferences consistent with innocence is a question for the jury, not the trial Judge on an application for a directed verdict: R v JMR (1991) 57 A Crim R 39.
The Crown case that Farhad Qaumi was in possession of the drugs is a circumstantial one. It is not suggested that he physically had custody of the drugs or the bag. Rather, it is suggested that at the relevant times he owned the drugs that were in the custody of other people.
Based on the circumstantial evidence, it would be open to the jury to accept that is the case. It will be for the jury whether there is some other innocent explanation for the evidence.
Accordingly, I refuse the application for a directed verdict in respect of count 20.
[2]
Endnotes
T 3238.
T4604-4605.
T 3798.
Exhibits 7O and 7P.
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Decision last updated: 23 November 2016