R v Qaumi & Ors (No 62)

1. [1]

   Jamil Qaumi is standing trial for murder and a number of other charges arising out of his alleged membership of a criminal street gang called the Brothers for Life, Blacktown Chapter. He gave evidence in the trial. On four occasions in the course of that evidence he was charged with contempt of the Supreme Court. On each occasion, the basis of the charge was his refusal to answer questions when directed to do so. No plea was taken and the hearing of the contempt proceedings was stood over until the conclusion of the present trial proceedings.

The First Count of Contempt

1. [2]

   The first count arose out of evidence given on 23 August 2016. It was unusual in that Mr Qaumi refused to answer a question asked by his own barrister. It became apparent that counsel was aware that this was going to occur. Counsel did not withdraw the question and I directed the accused to answer it. The transcript records the following exchange: [1]

2. [3]

   There was discussion in the jury’s absence and counsel was given the opportunity to confer with Mr Qaumi. [2] After adjourning for that purpose, I sought submissions as to why the accused should not be charged with contempt of the Court. [3] Mr Qaumi was then charged as follows: [4]

3. [4]

   The accused was not asked to enter a plea. Bail was refused and the accused was remanded in custody for the contempt matter to be dealt with at the conclusion of the trial. I note that he is bail refused in relation to the charges for which he is presently standing trial. All of this took place in the absence of the jury.

The Second Charge of Contempt

1. [5]

   Having been charged with the first count of contempt, I indicated that I proposed to give Mr Qaumi the opportunity to purge the contempt by answering the question when the jury returned. The following is recorded in the transcript: [5]

2. [6]

   At the next adjournment and in the absence of the jury, I asked counsel whether there was any reason that the accused should not be charged with a second count of contempt. He was then charged as follows: [6]

3. [7]

   Bail was refused and the contempt proceedings adjourned until the conclusion of the trial.

The Third Count of Contempt

1. [8]

   The third count arose on 24 August 2016 in the course of cross-examination by the learned Crown Prosecutor. The transcript records the following: [7]

2. [9]

   At the next adjournment when the jury retired, counsel was asked whether there was any reason why Mr Qaumi should not be charged with a third count of contempt. He was then charged as follows: [8]

3. [10]

   He was told that no plea would be taken until the conclusion of the proceedings. Bail was refused and the contempt proceedings adjourned.

The Fourth Count of Contempt

1. [11]

   The fourth count arose from the following exchange in cross-examination: [9]

2. [12]

   At the next adjournment, and in the absence of the jury, counsel was given the opportunity to address the question of why a fourth charge of contempt ought not to be instituted. Jamil Qaumi was charged with a fourth count as follows: [10]

3. [13]

   I went on to say:

Conduct of Proceedings

1. [14]

   It is necessary to make certain directions to ensure the efficient conduct of the hearing of the contempt proceedings.

2. [15]

   Proceedings for contempt in the face of the court are somewhat unusual and often not the subject of the ordinary adversarial process. Rather, they are disposed of by way of a summary procedure under Part 55 Division 2 of the Supreme Court Rules 1970 (NSW). The summary procedure was described by Kirby P in European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 457-458 as “extraordinary and exceptional, involving as it does a departure from normal curiel procedures and in a case criminal in nature where the penalties are at large”. Usually there is no prosecutor (although the practice varies depending on the manner in which the matter comes before the particular Judge).

3. [16]

   An alternative to this summary procedure is for the matter to be referred to the Registrar for the institution of contempt proceedings. That is a more appropriate procedure in cases where there may be some controversy surrounding the facts or where it may be necessary for witnesses to be called. The present case is one where the facts are clearly established by reference to the transcript. Whether the refusal to answer in each instance amounts to a contempt is not a matter that requires further evidence.

4. [17]

   As presently advised, the summary procedure appears to be the most appropriate one in the circumstances of this case. However, I will seek further submission on that issue.

5. [18]

   In cases where there is no prosecutor, counsel is often briefed to act in an amicus capacity: see, for example, Re Lonrho [1990] 2 AC 154, R v Rudd (unreported, 10 November 1994, NSWSC), Trad v Pickles Auction Pty Ltd; In the matter of Carl Trad [2006] NSWSC 1177 and, most recently, In the matter of Steven Smith (No 2) [2015] NSWSC 1141. In such cases, counsel is briefed by the NSW Crown Solicitors Officer acting on behalf of the Attorney General.

6. [19]

   In the present case, it is appropriate that counsel be appointed as amicus and I will make certain directions to facilitate that course.

7. [20]

   It is also appropriate to ensure that the accused is represented and receives advice as to his plea and the procedure that will be adopted. He should also have the opportunity to adduce evidence if appropriate and make submissions. I call on counsel who appears at the trial to indicate whether she is to appear at the contempt hearing and, if not, that she takes steps to ensure the accused receives legal representation as soon as possible.

8. [21]

   I make the following orders and directions:

   1. (1)

      The Prothonotary is to contact the Crown Solicitors Office to facilitate the appointment of counsel to act as amicus in contempt proceedings against Jamil Qaumi.

   2. (2)

      The Prothonotary is to provide the Crown Solicitors Office with:

   3. (3)

      Current non-publication orders are varied to facilitate order (2) above.

   4. (4)

      The Crown Solicitors Office should be asked to provide submissions specifically in relation to:

   5. (5)

      I vacate the orders made on 23-24 August 2016 adjourning the contempt proceedings until the conclusion of the trial and, in lieu thereof, list the matter for mention at 10am on Monday 20 September 2016.