Director of Public Prosecutions v Qayyum (Ruling No. 1)

[2024] VCC 500

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00995

DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v
JAWAD QAYYUM	Defendant

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JUDGE:

HER HONOUR JUDGE HOGAN

WHERE HELD:

Melbourne

DATE OF HEARING:

16 and 17 April 2024

DATE OF RULING:

DATE OF REASONS:

18 April 2024

22 April 2024

CASE MAY BE CITED AS:

DPP v Qayyum (Ruling No. 1)

MEDIUM NEUTRAL CITATION:

[2023] VCC 500

REASONS FOR RULING No.1
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Subject: Dispute concerning admissibility of portions of ARUNTA calls made by accused to his brother Bilal Qayyum.

Catchwords:              

Legislation Cited:      

Cases Cited:

Ruling:   That the disputed portions are admissible as to the accused’s motive to commit charge 2, but that the words “This happened before my own eyes” not be lead before the jury.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr M Turner	Director of Public Prosecutions
For the Accused	Mr J Shaw	Emma Turnbull Lawyers and Associates

HER HONOUR:

ARUNTA CALLS

1An issue has arisen concerning the admissibility of portions of two ARUNTA calls made by the accused whilst he was in custody at Ravenhall Corrections Centre, to his brother, Bilal, who was living in the United States of America. 

2The first disputed portion is in a call made on 4 February 2021. It appears on the interpreted transcript of the call from 00.10.16.07 to part way through the accused’s utterances at 00.10.25.02. It concerns the accused telling his brother that his wife is not in hospital as she had been discharged.

3Mr Shaw for the accused submits that this has no probative value and is unfairly prejudicial in that the jury may speculate that the complainant has been in hospital because of assaults upon her by the accused with which he had been charged.

4Mr Turner for the prosecution submits that the disputed portion is relevant as it demonstrates that the family members of the accused, at his direction, are keeping the location of his wife under surveillance in order to be able to make contact with her with a view to having her withdraw her complainant against the accused (this is the allegation comprising charge 1 on the indictment).

5The prosecution case is put on the basis that, after the accused had his bail revoked for breaching a Family Violence Intervention Order protecting his wife, the accused, through family members, endeavoured to locate his wife and get her to withdraw her complaint. In this context, I find that the accused’s knowledge of his wife’s whereabouts is relevant to a fact in issue and hence has probative value. If necessary, the jury can be directed that they should not speculate about why his wife was in hospital and that that fact, itself (as distinct from the accused’s knowledge of it), is not relevant for them to consider in determining whether charge 1 has been proven.

6The second disputed portion is in a call made on 8 February 2021. It appears in the interpreted transcript of the call, part way through Bilal’s answer, commencing at 00.01.33.26, to a question from the accused concerning his conversation with Ms Murtaza (a person known to both the accused and his wife). Charge 2 alleges that the accused attempted to pervert the course of justice by directing Bilal to contact Ms Murtaza in order to persuade her to make a statement which did not include anything about the accused’s arguments with his wife. In the disputed portion, Bilal tells the accused that Ms Murtaza has told him that she used to fold her hands in front of the accused and tell him that he shouldn’t beat them. “But they (sic) used to beat them” and that she later stated, “this happened before my own eyes.”

7The prosecution submit that the disputed portion is relevant to show the accused’s motivation to commit charge 2, in that he is aware that Ms Murtaza has said that he used to beat his wife and, hence, his concern and efforts to ensure that she makes a statement in his favour omitting any reference to their arguments, or that he used to beat his wife.  

8Mr Shaw for defence submits that it is double hearsay and inadmissible, and that the accused would know already if Ms Murtaza had witnessed him beating his wife. Moreover, in statements ultimately made to police, Ms Murtaza had not mentioned seeing beatings with her own eyes, as distinct from the accused’s wife telling her of beatings and showing her marks from them.

9In relation to charge 2, I consider that it is relevant to the issue of motive, that the accused has become aware that Ms Murtaza has told Bilal that she urged the accused to stop beating his wife, but he still persisted. Whilst the accused may have been aware that Ms Murtaza had some knowledge of the beatings, this is somewhat different in that he has been told that she has spoken out about telling him to stop them the beatings.

10I note that the latter matter was mentioned in Ms Murtaza’s statement to the police made on 22 March 2021, together with the fact that the accused had admitted to her that he had beaten his wife. It is obvious that a statement of Ms Murtaza to this effect would be seriously adverse to the accused in his defence of the charges which had been laid against him in the Magistrates court alleging family violence against his wife. Such a statement would also be damaging to the accused’s application for bail, which was listed for 17 February 2021. I am troubled by the portion of Bilal’s answer which records that Ms Murtaza stated “this has happened before my own eyes”. There is no evidence of which I am aware that Ms Murtaza ever claimed to have witnessed the beatings by the accused of his wife or could have given evidence that she did so. Moreover, this part of the answer is unclear in that it is immediately preceded by a reference to the accused having beaten Zarwah (the child of the accused and his wife). There are inaudible portions of the answers both prior to the latter statement and after the words “this has happened before my own eyes”. In these circumstances, I consider it fair and reasonable to exclude the portion of the disputed portion of the call that states, “this has happened before my own eyes”, particularly as the parties have agreed that small passages both proceeding and succeeding those words (parts of which are inaudible) should be excised.

11In making the ruling that the earlier disputed portions may be admitted into evidence as relevant to the accused’s motive on Charge 2, I note the following; that there has already been agreement between the parties that other words of Bilal, later in the conversation (at 03.40.12) to the effect that he understood Ms Murtaza would say the accused used to beat his wife, should be lead before the jury and these words ae followed by the accused responding (at 04.02.09) ‘Firstly, you should just try to persuade her to give a statement then when she about giving the statement, at that time, you should request her that please don’t write this kind of thing, such a thing will trap him further in it”. Moreover, it has also been agreed that the jury should have before it a later call between the accused and Bilal on 11 February 2021, in which Bilal states (at 07.57.19), when apparently referring to Ms Murtaza, “I am also a little afraid that she may give a small statement in your favour but can also writes (sic) in it that he used to beat her…”, to which the accused responds (at 08.07.14) “when she starts giving the statement me will tell her not to write such things in it. If she mentions even a little about it.” Given the agreement that these portions should be before the jury, it is difficult to see why the earlier conversations relating to Ms Murtaza should not also be in evidence, particularly as she it to be called as a witness anyway.

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