R v Qaumi & Ors (No 65)

On 2 September 2016, Senior Counsel for Farhad Qaumi raised the defence of provocation. [1] This was the first and last time that provocation was mentioned in the five or so months of the trial. Mr Stratton indicated that he did not seek a direction on provocation, or ask that the jury be instucted of the availability of an alternative verdict of manslaughter based on provocation. Further, he said that he did not intend to refer to provocation in his address. As it turned out none of the barristers mentioned provocation in their address. However, the matter was raised for my consideration, it being well established that a trial judge is required to put relevant defences to the jury if counsel for the accused does not rely on that defence: see, for example, Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20.

If there is any evidence capable of giving rise to the defence of provocation, the matter should be left for the jury’s consideration: Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76. In the present case, I am leaving self-defence to the jury in relation to offences where the accused does not specifically rely on the defence, I am directing the jury on withdrawal from the joint criminal enterprise (in respect of Mohammed Kalal and Jamil Qaumi) even though counsel has not submitted that their clients had successfully withdrawn, and I am leaving unlawful and dangerous act manslaughter to the jury although no counsel suggested to the jury that the acts of the accused did not establish an intention to kill by inference. However, I have concluded that there is no evidence giving rise to the defence of provocation and I do not propose to leave the issue of provocation to the jury. These are my reasons.

The Crimes Amendment (Provocation) Act 2014 (NSW) substantially altered the law in relation to the partial defence of provocation to a charge of murder and introduced a concept “extreme provocation”: s 23(1) Crimes Act 1900 (NSW). [2] However, those amendments do not apply to the present case. At the time of the Hamzy shooting (28-29 October 2013), the relevant provisions of the Crimes Act were as follows:

Senior Counsel very properly drew my attention to the decision in R v Quartly (1986) 11 NSWLR 332. That case concerned the question of whether second hand or hearsay statements are capable of giving rise to the defence of provocation. Lee J (with whom Hunt and Wood JJ agreed) stated at 333:

Mr Stratton also referred me to Davis v R (1998) 73 ALJR 139. That was an application for special leave to appeal to the High Court: [1998] HCATrans 422 in which McHugh and Hayne JJ questioned the decision in R v Quartly:

However, special leave was refused and those observations cannot be taken to have overruled the decision in R v Quartly. Accordingly, this Court is bound to follow the decision of the Court of Criminal Appeal in R v Quartly.

The present case provides a good example of the reasons behind that earlier decision. There are conflicting versions of the conversations that relayed the potentially provocative conduct. Witness M is said to have relayed information that she had heard from her ex-husband (described in the addresses as “a gangster” [3] ). It is uncler whether, but it seems likely that, the husband was relating information that came to him from somebody else. Witness M said that her former husband, who was at the time in gaol, said that an inmate told him that Farhad should be careful because LC [4] was after him. [5] However, other witnesses said that Witness M told Farhad Qaumi and others that LC had taken a contract out on Farhad Qaumi’s life [6] and that there had been an earlier thwarted attempt on his life at a McDonalds restaurant. [7] Witness M, the source of the infromation, denied saying those things.

In other words, because of the hearsay nature of the evidence, there is confusion over the content of the “conduct” [of Mohammed Hamzy] that may have been provocative. Further, LC was not killed. The plan was botched. His cousin, Mahmoud Hamzy was killed, apparently because he was wearing a black cap similar to one that the target was seen wearing earlier in the day. There is no evidence of “any conduct of the deceased … towards or affecting [any of] the accused”. As far as I can recall, there is no evidence that any of the men charged with his murder even knew who Mahmoud Hamzy was.

Putting aside the hearsay nature of the reports of Mohammed Hamzy’s conduct, and the fact that the wrong man was killed, the conduct described could amount to relevantly provocative conduct.

However, even allowing that such material could (contrary to R v Quartly and a literal reading of the terms of the section) found the defence, it remains the case that there is no evidence capable of giving rise to a viable defence of provocation: see, for example, Lane v R [2013] NSWCCA 317 at [42]-[43] citing R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385.

Provocation involves a loss of self-control in the accused resulting from fear, anger or resentment and this must be present at the time of the killing: see, for example, s 23(2)(a), Stingel v The Queen (1990) 171 CLR 312; [1990] HCA 61 and R v Peisley (1990) 54 A Crim R 42.

There is no evidence that any of the accused charged with the murder of Mahmoud Hamzy lost their self control. On the contrary, the evidence shows that the various participants discussed and planned the shooting over a number of hours. It was a calculated and well planned, if ultimately bungled, enterprise. Two of the accused, Mumtaz Qaumi and Farhad Qaumi, did not attend the scene of the crime and there is no suggestion that either of them lost their self-control. Parts of the evidence suggest that Farhad Qaumi was angry but no evidence suggests he lost his self control. At around the time of the killing CCTV footage shows the two men playing poker machines at a hotel far away from the scene of the shooting. Similiarly, there is no evidence that Jamil Qaumi and Mohammad Zarshoy, who attended the scene of the crime, lost their self-control.

There are two other bases upon which the alternative verdict of manslaughter will be put to the jury (excessive self-defence and unlawful and dangerous act). However, for the foregoing reasons, there is no evidence capable of giving rise to a viable defence of provocation and a verdict of manslaughter on that basis will not be left to the jury.