R v Qaumi & Ors

Judgment

1. At or towards the end of cross-examination of Witness I [1] by Mr Clarke on behalf of the accused Mohammed Kalal, Ms Carroll (counsel for Jamil Qaumi) and Mr Stratton SC (counsel for Farhad Qaumi) sought leave or permission to undertake further cross-examination of the witness. I allowed limited further cross-examination over the objection of Mr Clarke. These are my reasons for doing so.
2. I have previously been called upon to consider a similar application by Jamil Qaumi in the course of the evidence of Witness G: R v Qaumi & Ors (No 32) [2016] NSWSC 675. I have also considered applications by Farhad Qaumi for orders under s 42 of the Evidence Act 1995 (NSW) preventing Mr Clarke from asking leading questions: R v Qaumi & Ors (No 39) [2016] NSWSC 797. In those decisions I made observations about the order of cross-examination and the forensic advantages and disadvantages which arise in this case where the accused last mentioned on the indictment (Mr Kalal) is conducting a defence of duress wherein the threats that underpin the defence came from the co-accused. This judgment must be read in conjunction with those earlier decisions and observations.
3. Decisions as to whether further cross-examination should be permitted turn on considerations of fairness to the respective accused. There can be no hard and fast rule and the decision will turn on the particular subject matter of the proposed additional questions. What will not (generally) be permitted is a further attempt to impeach the witness's credibility. As I have observed in the earlier judgments, by the time Mr Clarke cross-examines there has been a sustained and lengthy attack on the credibility upon whose evidence he seeks to place some reliance. However, where new evidence emerges in the cross-examination of Mr Clarke, considerations of fairness may require that the accused affected be permitted to at least challenge that evidence.