Supreme Court New South Wales Medium Neutral Citation: R v Qaumi & Ors (No 65) [2016] NSWSC 1336 Hearing dates: 2 September 2016 Date of orders: 22 September 2016 Decision date: 22 September 2016 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: The defence of provocation will not be left to the jury. Catchwords: CRIMINAL LAW – murder – provocation – Little Crazy – no evidence to support the defence – whether defence available based on hearsay statements that target of shooting intended to kill accused – where the plan was botched – wrong man killed – no evidence of provocative conduct of the deceased – no evidence of loss of self-control – well planned but bungled enterprise – no viable defence of provocation Legislation Cited: Crimes Amendment (Provocation) Act 2014 (NSW) Crimes Act 1900 (NSW) Cases Cited: Davis v R (1998) 73 ALJR 139 Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 2 Lane v R [2013] NSWCCA 317 R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385 R v Peisley (1990) 54 A Crim R 42 R v Quartly (1986) 11 NSWLR 332 Stingel v The Queen (1990) 171 CLR 312; [1990] HCA 61 Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76 Category: Procedural and other rulings Parties: Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Mohammad Zarshoy Mohammed Kalal Representation: Counsel: K McKay & P Hogan (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami) N Carroll (J Quami) R Driels (M Zarshoy) G Clarke (M Kalal) Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten & Co (M Quami) Bannisters Lawyers (J Quami) Zahr Lawyers (M Zarshoy) Hallak Law (M Kalal) File Number(s): Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260Jamil Quami - 2013/336086; 2014/18164; 2014315253Mohammad Zarshoy – 2014/316236Mohammed Kalal - 2013/344739; 2014/66939 Publication restriction: No publication until the conclusion of the trial. Judgment 1. 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. 2. 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. 3. 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: "s 23 Trial for Murder – Provocation (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter. (2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and (b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time. (3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if: (a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission, (b) the act or omission causing death was not an act done or omitted suddenly, or (c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm. (4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation. (5) This section does not exclude or limit any defence to a charge of murder." 1. 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: "In the course of argument Mr Hidden QC sought to contend that thewords 'affecting the accused' in s 23(2)(a) were to be read as though theygave to the whole expression 'conduct affecting the accused' a generalmeaning so as to permit any incident or event which 'affected him' in ageneral sense, to be treated as a provocative incident and thus to permithearsay provocation to be a foundation for the defence of provocation. In myview, there is not to be attributed to the expression 'affecting the accused' ins 23(2)(a) the consequence that the common law as to the nature of theprovocative incident in provocation has been altered. The words are designedto cover the case where the provocation is not to be regarded as directedtowards the accused person but where it can nonetheless be said to 'affect'him. The common law recognised such cases, for example, finding one's wifebeing raped (1 Hale PC 486; R v Millward (1931) 23 Cr App R 119); or anunnatural offence being committed on one's son (R v Fisher); or a member ofone's family being assaulted (R v Harrington (1866) 10 Cox CC 370). As toadultery: see 1 Hale's Pleas of the Crown (at 486); R v Manning (1671) TRaym 212 and R v Pearson (1835) 2 Lew CC 216; 168 ER 133. Theprovocative incident relied upon in such cases must still be conduct of thedeceased seen or heard by the accused. For a discussion on insulting words as provocation: see R v Tsigos [1964-5] NSWR 1607." 1. 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: "The applicant seeks special leave to appeal against his conviction for murder to raise the question whether provocation is available to reduce murder to manslaughter where the provocation is not committed in the presence of the accused but is reported to him. The learned trial judge, following the decision in R v Quartly held that it was not. We think that there is a strong case for saying that Quartly was wrongly decided on this point. Having regard to the terms of the statute it would seem sufficient for the accused to show that there was provocation on the part of the deceased and that it induced the accused to lose his or her self-control." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. ********* Endnotes 1. T 6347. 2. The amendment came into force on 13 June 2004. 3. T 6917. 4. LC is an acronym for Little Crazy, Mohammed Hamzy's nickname. 5. T 2221. 6. T 2798-2799, 3953. 7. T1883-1884, 3954-3955, 4008-4010. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2016