Shortly after 10am this morning, Mr Young SC brought to my attention the fact that an issue has arisen that means that three of the accused, Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi, have indicated that they wish to dispense with the services of their legal representatives. Counsel currently appearing in the trial are Mr Stratton SC and Ms Curry for Farhad Qaumi, Mr Young SC for Mumtaz Qaumi and Ms Carroll for Jamil Qaumi.
As a result of my being so informed, the jury was allowed to disperse for some hours while counsel and their instructing solicitors spoke to the three accused. At that stage, Mr Stratton SC was not present. He had told me yesterday that he had another commitment early this morning. He is now present and the Court re‑assembled in the absence of the jury at about half past 12.
I understand that since counsel told me what was happening at 10am, there have been a number of conferences between the lawyers and their clients but that the situation remains somewhat uncertain. I understand that each of those three accused earlier mentioned have dismissed both their solicitors and barristers. At the moment what is being suggested is that I hear an application that the case of Mr Kalal be separated at this point of the trial and an indication has been given that, if that application is not successful, the Qaumi brothers propose to dispense with the services of their lawyers, possibly seeking an adjournment in the meantime. How those two things are related to one another is mysterious to me.
However, before I allow anything further to happen, I think that I should make a number of observations.
The first is this: we are in the 13th week of the jury trial, today being the scheduled 56th day of the trial. We seem to be at least halfway through and probably a fair bit further than halfway through the prosecution case. Unless something quite extraordinary is to happen, it is unlikely that the present jury would be discharged without verdict. Having said that, any application to discharge the jury will be treated on its merit.
The second observation is that, as I am advised, the Legal Aid Commission of New South Wales, who must have spent a fortune on this case, has indicated that it will not fund any alternative lawyers. I gather that the view has been taken at the very highest level of the Commission that enough public funds have been spent on the case. Apart from the 13 weeks of jury trial, there were some weeks, if not months, of pre‑trial argument commencing in November of 2015 and concluding in April this year.
The third observation is one that flows from the first and the second. It is this: if the instructions of the present legal representatives are withdrawn, the trial is likely to, or most assuredly will, continue and three of the accused ‑ that is to say, Farhad, Mumtaz and Jamil Qaumi ‑ will continue in the trial without the benefit of legal representation. That is, for reasons that I should articulate further, a most unfortunate and unsatisfactory situation, particularly from the point of view of the three accused men themselves.
That brings me to my fourth observation which concerns the quality of the representation with which the three accused men have been provided to this point. The lawyers involved in this case, both counsel and their instructing solicitors, are highly regarded and experienced practitioners in the criminal law. Putting aside their reputations which might count for nothing, any fair‑minded observer of the proceedings over the last six months would recognise that the quality of the representation that each of the accused is receiving is of the very highest order. It is not only the skill and experience that counsel and their solicitors bring to bear, it is also the effort that it is being displayed, no doubt at great personal expense to their families and to their health.
I want to provide just a few examples. Four of the most central witnesses in this case - Witness G, Witness I, Witness M and Witness L ‑ have all given evidence. Each was cross‑examined vigorously by counsel over many days. The cross‑examination was, objectively viewed, devastating of the credibility of the four witnesses.
In each case, the jury was then provided with a strong warning that the evidence of the witnesses may be unreliable. In each instance, the strength of the warning was largely due to the cross‑examination of Mr Stratton, Mr Young and Ms Carroll who placed before the jury every possible item of evidence that may lead to the jury disbelieving and disregarding the evidence of the witnesses. I do not exclude Mr Driels or Mr Clarke from my observations, but it is only relevant at this point to speak of the three counsel whose instructions have been, or are at risk of being, withdrawn.
The second example is, in the last week, the Crown Prosecutor made an earnest application for one of the jurors to be discharged because she appeared to be smiling at or flirting with the accused. That application was supported by counsel for the accused Mohammed Kalal. Four police officers and the solicitor for the learned Crown Prosecutor gave evidence.
Many counsel would have surrendered in the face of that evidence, acceded to the Crown's application and simply allowed the trial to continue with 13 jurors. But rather than doing that, and on their clients' instructions no doubt, each of the witnesses was cross‑examined by counsel on the voir dire and the application was vigorously opposed. As a result, the three counsel whose instructions are now being threatened to be withdrawn persuaded me to continue with the 14 jurors.
The next example of the quality of the legal representation concerns matters that emerged in the pre‑trial hearing. That pre‑trial hearing resulted in significant forensic success for the accused, although they didn't win every argument that they brought. That is the pattern and that is the way that court cases go. You win some arguments and you lose some arguments.
In particular, a count against Farhad and Mumtaz Qaumi that alleges the unrelated murder of a man called Antoun was severed from the indictment. Three other shooting incidents were also severed from the indictment. Allegations that Farhad Qaumi was involved in three other murder cases which were either withdrawn or in which he was acquitted were excluded from the trial all together. Even when a co‑accused, Mr Kalal, sought to have the matters brought in to support his defence of duress, counsel successfully argued that the material be excluded.
Those are merely some random examples. The fact is that the legal representation provided to the Qaumi brothers by their barristers is, put simply and objectively, excellent.
It is also obvious to me observing from the Bench that each of the solicitors who are instructed in the case are thoroughly prepared and on top of what is an extraordinarily large volume of material.
What all of that leads to is that on any objective view, the best chance that these three men have of winning this trial and achieving acquittals is by a continuation of their current legal representation. They could not be represented more vigorously or skilfully by any other lawyers and it is difficult to see how it will be to their advantage to appear in the trial unrepresented. They cannot simply take their bats and balls and go home.
My fifth observation concerns what I take to be the matter at the heart of the present situation. The problem appears to stem from the fact that the accused Mohammed Kalal is running a defence of duress. What that means is that his counsel is cross‑examining after counsel for the Qaumi brothers because of the order on the indictment. I have referred to this in earlier judgments, although I suspect that the accused have not necessarily had the opportunity to read what I have said.
At times counsel for Mr Kalal elicits evidence that is detrimental to the brothers. I perceive, from what I am now told about the foreshadowed application, is that the Qaumi brothers see this as unfair.
Four things should be observed about that. The first is that by the time that Mr Clarke stands to cross‑examine these witnesses, a great deal of damage has already been done to the witnesses and their credibility. The extent to which the jury at that stage is taking the evidence into account against theQaumi brothers - as opposed to in favour of Mr Kalal - is difficult to know.
Second, the order in which things happen will be reversed in the addresses. In other words, Ms Carroll on behalf of Jamil, Mr Young SC on behalf of Mumtaz and Mr Stratton SC on behalf of Farhad will each get to respond to Mr Clarke's submissions on behalf of Mr Kalal after he finishes his closing address. So any forensic disadvantage perceived by the Qaumi brothers will at that stage be reversed.
The third is this: the jury has and will receive extremely strong directions that they must treat each case separately. For example, acceptance of the defence of duress in the case of Mr Kalal will not lead to a conclusion adverse to the Qaumi brothers in terms of whether the case against them is proved beyond a reasonable doubt. Each case will be considered separately by a jury who is plainly attentive to the directions that they receive and will be directed firmly that no consequence flows from an acquittal in one count or a conviction on one count in respect of the remaining counts.
Fourth, the reason at this stage that the trial is proceeding together is because of an order that I have made for a joint trial. That judgment also included severance of a number of counts as well as joinder of the remainder of the counts being heard together. If the accused perceive that to be an unfair situation, it may be that in the ultimate an appeal Court may take a similar view. If there were to be any convictions in relation to the current charges following what is perceived to be an unfair trial because of that joinder, the convictions may ultimately be quashed.
In those circumstances, the most sensible approach must be for the accused to run the present trial and conduct it in such a way as to give themselves the best chance of winning it. Simply sacking their lawyers because they don't like a particular ruling that would be made is entirely counter to their interests.
I do not and did not come on to the Bench intending to allow counsel at this stage to withdraw from the case, even though ultimately it will be for the accused to determine whether or not they seek to continue with their current lawyers, seek some application to adjourn or discharge the jury or, alternatively, to proceed with the trial without legal representation. Why they would choose any alternative but to continue with their current legal representations is completely a mystery to me, given the quality of that representation as I have described it.
I am asked by counsel for the three accused for the opportunity to essentially re‑ventilate an issue previously determined. That issue is whether or not, at this stage - week 13, day 56 of the jury trial - the accused Kalal be now separated. [Case management orders were made many months in advance of the trial and a series of separate trial and severance applications were heard in December 2016. I published a judgment on the issue on 3 February 2016: R v Qaumi & Ors (No 3) (Severance and Separate Trial) [2016] NSWSC 15. The issue was revisited when the issue of duress was (finally) identified by the accused Kalal although in April of this year but no application was pressed: R v Qaumi & Ors (No 24) [2016] NSWSC 505 at [14], [35], [70]-[82].] [1]
At the outset of the trial in the judgment known as R v Qaumi & Ors (No 3) I made orders in relation to joinder and separation of various counts. Mr Kalal at that stage, as I recall it, sought a separate trial but the application made on behalf of Farhad Qaumi was not for separation but, rather, for severance of various counts. He was largely successful in that application.
Shortly after the jury trial commenced, there was an application by counsel for Mr Kalal to adduce evidence concerning Mr Farhad Qaumi boasting about having beaten three earlier murder charges. As I had when the Crown sought to lead that evidence, I disallowed that evidence from the trial. At that stage, there was foreshadowed to be an application for separate trial if ‑ and I underline the word "if" ‑ Mr Clarke was successful in eliciting that evidence. He was not and no application for separation of Mr Kalal arose.
In any event, the situation has now been reached where the accused clearly seek to make that application and, however late it be, I [am] obliged to hear it. [2] It will receive a proper consideration and will be determined on its merits.
In the meantime, I trust that the words I have said are clear to the accused, because they are designed for their benefit, and I will adjourn until 2.30pm.
For those reasons I make the following orders:
1. Adjourn the jury trial pending resolution of the issue of the accused's legal representation and application for separate trial.
[2]
Endnotes
The words and case references in square brackets were inserted during revision of the judgment.
Section 21(4) of the Criminal Procedure Act 1986 allows an order for separation to be made "at any stage during the trial".
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Decision last updated: 12 December 2016