Director of Public Prosecutions v Qayyum (Ruling No. 2)

[2024] VCC 484

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

v

JAWAD QAYYUM

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 17 April 2024
DATE OF RULING:	18 April 2024
DATE OF REASONS:	22 April 2024
CASE MAY BE CITED AS:	DPP v Qayyum (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2024] VCC 484

REASONS FOR RULING (NO 2)
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Subject:CRIMINAL LAW

Catchwords:              Issue concerning admissibility of text messages from accused’s brother, Bilal Qayyum, to Fozia Murtaza

Legislation Cited:      Evidence Act, s87(1)(c)

Cases Cited:

Ruling:  Text messages held to be admissions by the accused in furtherance of a common purpose and to be admissible pursuant to s. 87(1)(c).

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Turner	Solicitor for the Office of Public Prosecutions
For the Accused	Mr J Shaw	Emma Turnbull Lawyers and Associates

HER HONOUR:

1An issue has arisen between the parties concerning the admissibility of text messages sent by the accused’s brother, Bilal Qayyum, to Ms Fozia Murtaza (a friend of the accused and his wife, Hafiza Bashir).  The messages and Ms Murtaza’s responses span a period from 30 December 2020 to 20 February 2021.

2By way of background, it is relevant to note the following chronology:

·        On 28 August 2020, the accused was charged with assaulting his wife and bailed with conditions to abide by a Family Violence Safety Notice, listing his wife and Zarwa Qayyum (the daughter of the accused and his wife) as the protected persons.

·        On 1 September 2020, a Family Violence Intervention Order listing his wife and Zarwa as the protected persons was served upon the accused.

·        On 20 November 2020, the accused was arrested and charged with a number of family violence offences relating to his wife and Zarwa and was remanded in custody.

·        On 17 February 2021, a bail application on behalf of the accused was listed for hearing, but did not proceed on that date.

·        On 22 February 2021, a contest mention was held at Sunshine Magistrates’ Court relating to charges against the accused.

·        On 29 March 2021, at Sunshine Magistrates’ Court, the accused entered pleas of guilty to the following charges:  criminal damage, contravening an Interim Family Violence Intervention Order, committing an indictable offence whilst on bail, unlawful assault, two charges of common law assault, persistent contravention of a Family Violence Intervention Order and intentionally causing injury.  He was sentenced to a total effective sentence of nine months’ imprisonment (with 180 days reckoned as already served), together with a Community Correction Order for 12 months, with conditions of undergoing treatment and rehabilitation programs as directed, including offending behaviour programs, a men’s behavioural change program and an anger management program.

3In this trial, the accused is charged with two charges of attempting to pervert the course of justice.  Charge 1 is an allegation that, with intent to pervert the course of justice, the accused engaged in conduct that had the tendency to pervert the course of justice, in that he directed Salman Qayyum and Bilal Qayyum to get friends and relatives of his wife to locate her and contact her to persuade her to withdraw her police complaint against him.  Charge 2 is an allegation that, with intent to pervert the course of justice, the accused engaged in conduct that had the tendency to pervert the course of justice in that he directed Bilal Qayyum to contact Fozia Murtaza in order to persuade her to make a statement in his favour that did not include anything about his arguments with his wife.

4At all relevant times, the accused’s brother, Bilal, was living in the United States of America, and his brother, Salman, was living in Pakistan.  The prosecution do not propose to call them as witnesses in the trial.

5Mr Turner, on behalf of the prosecution, submits that the text messages from Bilal to Ms Murtaza are probative evidence that Bilal was contacting Ms Murtaza on the direction of the accused.  Such messages, he submits, were in pursuit of a common purpose of the accused and Bilal to persuade her to make a statement in favour of the accused in order to assist him to get bail and/or in his defence of the family violence charges.  He submits they are relevant to show the intention of the accused to pervert the course of justice on each of the charges, albeit that it is not alleged by the prosecution that Bilal was a co-conspirator or would necessarily have been aware that he (Bilal) was acting unlawfully. 

6On Charge 1, the prosecution submits that the accused’s intention can be proven in the text message from Bilal to Ms Murtaza on 7 February 2021 in which he states “can you do me a favour and talk to Moona (a name by which the accused’s wife is known), contact her … tell her to take back the case.  I can guarantee on behalf of my brother that he will not mistreat her or do anything to upset her.”  The prosecution submit that the text messages which precede this particular one demonstrate Bilal persistently asking Ms Murtaza for the contact details for the accused’s wife and urging Ms Murtaza to give her a message that Bilal wants to talk to her are also relevant and admissible.  It is submitted that they not only provide context to the message on 7 February 2021, but are all admissible as admissions by the accused pursuant to s87(1)(c) of the Evidence Act.

7The prosecution argues that, although Bilal may not have been aware of the Family Violence Intervention Order which prevented the accused from making contact with his wife or causing others to do so, the accused was clearly aware of it.  Charge 1 alleges that the accused, with reckless and unlawful intent to pervert the course of justice, directed Bilal to locate and contact the accused’s wife to persuade her to withdraw her police complaint against him.  The prosecution submits that the text messages sent by Bilal are proof of the accused’s intention in that locating and contacting his wife are the first stage of the attempt to get her to withdraw her statement.  Mr Turner submits that it is plain from the text messages that Bilal is not expressing concern about the welfare of the accused’s wife, but exhibit a persistent urgency about wanting to contact her and are in pursuit of the common purpose outlined by the accused in the Arunta calls. In all the circumstances, he submits that Bilal’s attempts to obtain contact details for the accused’s wife, coupled with the stated purpose of urging Ms Murtaza to have the accused wife “take back the case”, are an “admission” by the accused and are adverse to his interest in the proceeding in accordance with the definition of “admission” in the dictionary forming part of the Evidence Act.  He submits that this is because they demonstrate his intent to have someone find his wife’s location, make contact with her and then ultimately persuade her to withdraw her complaints which are the subject of the charges brought against him at Sunshine Magistrates’ Court.

8In relation to Charge 2, the prosecution seeks to rely upon the messages sent by Bilal to Ms Murtaza as admissions of the accused in furtherance of the alleged common purpose of persuading Ms Murtaza to make a statement supportive of the accused (in particular, to assist him to obtain bail), which specifically omitted any reference to arguments between the accused and his wife.  The prosecution relies upon these messages as admissions by the accused via Bilal as to the accused’s intention to change the outcome of the legal proceedings or how they may play out in Court.  Mr Turner submits that, because the accused was in custody, he was unable to make such contact himself.  Hence, he has agreed with Bilal that Bilal will do it for him and, that this is so, is evident from the Arunta calls with Bilal, particularly the call on 6 February 2021.

9Mr Shaw, on behalf of the accused, submits that Bilal’s texts to Ms Murtaza attempting to have her contact the accused’s wife could not be said to be in furtherance of a common purpose pursuant to s87(1)(c) because the first text message is dated 30 December 2020 and there is no evidence that the accused had spoken to Bilal prior to that date.  He relies upon the first Arunta call between the accused and Bilal not having taken place until 3 February 2021.  Mr Shaw submits that the only relevant evidence of the accused’s intention is what the accused says in the Arunta calls and, if the jury are satisfied that the words manifest the requisite intention for the charge, then that proves the charge and Bilal’s text messages to Ms Murtaza are irrelevant.

10Mr Shaw submits that, in the event that the Court should find that Bilal’s text messages to Ms Murtaza were in furtherance of a common purpose which Bilal had with the accused, the messages could not be construed as an “admission” of the accused in accordance with the definition in the dictionary in the Evidence Act.  He submits that simply trying to locate the accused’s wife or obtain a contact number in order to speak with her is in no way an admission probative of the requisite intent to attempt to pervert the course of justice, as alleged in Charge 1.  Mr Shaw accepts that the text by Bilal urging Ms Murtaza to talk to the accused’s wife and “tell her to take back the case” could be said to demonstrate an attempt to engage in conduct that had the tendency to pervert the course of justice.  However, he submits that this was really a “bootstraps” argument reliant upon a preliminary assumption that the accused is guilty of criminal conduct of attempting to pervert the course of justice at the time of the text message.

11The preliminary argument of Mr Shaw, that there is no evidence of a common purpose of the accused and Bilal referable to Charge 1 prior to the first text message to Ms Murtaza from Bilal, is without substance.  Firstly, Ms Murtaza, in her statement to police made on 22 March 2021, states that, in December 2020, the accused’s brother living in America started to contact her by text message.  It is anticipated by the prosecution that Ms Murtaza will give evidence in accordance with that statement.  Moreover, s87(1)(c) makes it plain that, in order to be admissible, the representation made by Bilal may be in furtherance of a common purpose “with the party or one or more persons including the party” (my emphasis).  The wording of Charge 1 alleges that the accused “directed Salman Qayyum and Bilal Qayyum to get friends and relatives of Hafiza Bashir to locate and contact Hafiza Bashir in order to persuade Hafiza Bashir to withdraw her police complaint against Jawad Qayyum.”

12In an Arunta call between the accused and Salman on 26 December 2020, the accused asked whether contact had been made with some persons referred to as “Mehak” and “a maternal cousin” in the context of asking them to tell his wife, in essence, that “she should be afraid of God” for saying such things that he had been beating her (02.40.02) and that she “may get convinced” (02.50.14).  In a subsequent call between the accused and Salman on 1 January 2021, there is discussion that Bilal has contacted “her friend” (02.12.09) and also reference to the fact that Salman has contacted a female person who has said that she will find out about his wife and try to convince her (02.34.20).  On their face, these communications indicate that the accused had a concern to ensure that other people should try to contact and convince his wife that she should change what she had said about the accused beating her.  Following this, in the first Arunta call between the accused and Bilal, on 3 February 2021, Bilal tells the accused that he has talked to Salman.  The accused then asks whether Bilal talked to “her friend” and Bilal responds that he did not get a chance.  He sent her messages one or two times but she did not reply, but, earlier she had told Bilal that “if you come here, it will be better off”.  It is a reasonable inference that the content of this conversation is a reference to the text messages exchanged between Bilal and Ms Murtaza on 30 December 2021 when Ms Murtaza says she does not know the whereabouts of Moona (a name by which the accused’s wife is known), but is trying and will let him know.  Also, on 31 December 2021, in response to Bilal urging “please sister do something”, Ms Murtaza states “… I think it is better if you can come”.

13Ms Murtaza’s evidence is that she had never met Bilal and had had no contact with him until she began to get phone messages from him.  This fact, together with what is said in the Arunta calls to which I have referred, make it reasonably open to infer that, in contacting Ms Murtaza, Bilal is following the directions of the accused and had a common purpose with the accused of trying to find out where his wife is, contact her, and convince her to “take back the case”.  I am satisfied that the prosecution may use this evidence as an admission by the accused, given that he knows that he is not to contact his wife because he has been served with an Intervention Order prohibiting him from doing so. 

14I accept the prosecution submission that the texts by Bilal persistently requesting contact details for the accused’s wife are able to be construed as the preliminary steps to achieve the common purpose of him having her withdraw her complaint against the accused.  It is reasonably open to find that these representations satisfy the dictionary definition of admission because it is a representation made on the accused’s behalf when the accused is involved in a criminal proceeding (both the charged offences and an impending bail application) and the representation is adverse to his interest in the outcome of the proceeding in that it is plain that his wife has made allegations of violence against him and the evidence establishes an intent to have people act on his behalf to contact her to change her statement or “take back the case”.  I therefore rule, pursuant to s87(1)(c) of the Evidence Act that the prosecution may adduce evidence of the disputed text messages as relevant proof of the requisite intention of the accused on Charge 1.

15In relation to Charge 2, the prosecution seeks to rely upon the messages sent by Bilal to Ms Murtaza as admissions of the accused in furtherance of the alleged common purpose of persuading Ms Murtaza to make a statement supportive of the accused (in particular, to assist him to obtain bail) which specifically omitted any reference to arguments between the accused and his wife.  The prosecution relies upon these messages as admissions by the accused via Bilal as to the accused’s intention to change the outcome of the legal proceedings or how that may play out in Court.  Mr Turner submits that, because the accused was in custody, he was unable to make such contact himself.  Hence, he has agreed with Bilal that Bilal will do it for him and, that this is so, is evident from the Arunta calls with Bilal, particularly the call on 6 February 2021.

16Mr Shaw, on behalf of the accused, submits that, whilst it might be accepted that these texts to Ms Murtaza are in furtherance of a common purpose of the accused and Bilal, there is nothing unlawful in what Bilal communicates to Ms Murtaza.  He is simply asking for her assistance.  In this sense, there is nothing in the representations by Bilal that are adverse to the accused’s interests.  He submits that it is legitimate for the accused to have Bilal approach a person to make a statement to help him.  In these circumstances, he submits that the representations cannot meet Part (b) of the definition of “admission” in the dictionary in the Evidence Act.  Hence, they cannot be admitted into evidence pursuant to s87(1)(c).  Mr Shaw submits, again, that to construe the messages as admissions would involve first having to reason that the accused had a guilty intent in directing Bilal to make such representations, that is, a “bootstraps” approach.  Although Mr Shaw conceded that the representations of Bilal can be attributed to the accused, he submitted that there was nothing in their content that made them admissions against interest, as distinct from a lawful request for Ms Murtaza to make a statement to help the accused.

17In my view, it is reasonably open to construe the disputed messages referable to Charge 2 as admissions against interest, in that, as submitted by the prosecution, they represent the first stage of the accused’s intended plan to manipulate Ms Murtaza into giving a statement that the accused ultimately proposes to ensure contains no damaging references to disputes between he and his wife or beatings.  The representations by Bilal to Ms Murtaza, particularly from 6 February 2021 onwards, are a leadup to the request for Ms Murtaza to personally help the accused in circumstances where it has become apparent that Ms Murtaza has not given any assistance concerning the whereabouts of the accused’s wife.

18In the Arunta calls between the accused and Bilal on 4, 6, 7 and 8 February, the accused has given very specific instructions to Bilal not to ask Ms Murtaza straight away to make a statement in his favour but to first “soften her” by mentioning that he is worried about the child, Zarwa, and the consequences which may leave her an orphan, that the accused is crying in prison and also not well because of his diabetes, that Bilal should ask Ms Murtarza to have mercy for the accused and that it is stressful because their mother does not know about the accused’s situation.  These suggested forms of emotional manipulation are then evident in Bilal’s text messages of 6, 7, 11 and 12 February.  By the latter date, as suggested by the accused in the Arunta calls to Bilal, there is mention to Ms Murtaza of contacting the accused’s lawyer, as well as provision of a screenshot of the lawyer’s card with his name and contact details on it.  By 15 February 2021, Bilal asks Ms Murtaza whether she has made a decision about the statement.  He specifically states “Sister, as of right now I want to bail my brother with the help of your statement”, and repeats concerns about the child, Zarwa, living a foster or orphaned life, and that the accused is also very sick in jail.  Thereafter, in the leadup to the proposed bail application listed on 17 February 2020, Bilal makes daily contact with Ms Murtaza.  He urges her to make a statement in the accused’s favour so that he can get bail and to feel pity for the accused. 

19The importuning nature of Bilal’s text messages continues on 18, 19 and 20 February. They are to the effect that Ms Murtarza should think about the statement, otherwise the accused will remain in jail, there will be family issues and Zarwa’s life will be ruined (which matters have specifically been the subject of the “softening up” instructions by the accused to Bilal in the Arunta calls).  It is true that the text messages do not mention that Ms Murtaza’s statement should not contain any details of arguments or beatings.  However, in my view, this is entirely consistent with the strategy given to Bilal in the Arunta calls.  In particular, in the Arunta call on 8 February 2021, when Bilal tells the accused that he understands Ms Murtaza would say that he used to beat his wife (03.40.12), the accused responds “firstly, you just try to persuade her to give a statement.  Then, when she’s about to giving (sic) the statement, at that time you should request her but please don’t write this kind of thing, such a thing will trap him further in it.” (04.02.09).  These words of the accused follow a clear direction from him to Bilal in the Arunta call on 6 February 2024 that Ms Murtaza should not mention anything in her statement about the arguments (06.48.24) and in the call on 7 February 2021, he has reminded Bilal “only one thing to mind in the statement … don’t mention anything about the arguments … by mentioning this the matter would worsen” (03.06.04 to 03.14.09).  In that same call, he has gone on to make plain that he wants the outcome of the legal proceeding to be “without conviction”. (04.07.29)

20In the Arunta call on 11 February 2021, Bilal again raised with the accused his concern that Ms Murtaza may write in her statement that he used to beat his wife and asks “wouldn’t you get into more trouble with this?” (07.47.19). The accused responded “no, I am saying that when she will write the statement, when she starts giving the statement, we will tell her not to write such a thing in it, if she mentions even a little thing about it” (08.07.14). The following day, on 12 February 2021, the accused stated to Bilal “do not say her that you have to give a statement.  You mention her to write these things down … say write it on paper or type it or you tell her that I type it for you and you sign under it … then you just write this statement and tell her that I will write it for you and you sign below it … this way you can elaborate it too, right” (10.42.23 to 11.15.25).

21In my view, these Arunta calls make it clear that the accused desperately wanted a statement from Ms Murtaza, but he needed it to contain things that he wanted in it and to specifically not mention disputes with his wife or beatings.  His very specific instructions to Bilal over multiple phone calls show the way in which he wished to emotionally manipulate Ms Murtaza into making such a statement.  Viewed in this context, I accept the prosecution submission that the text messages of Bilal to Ms Murtaza represent evidence of the accused’s intention to manipulate her into giving a statement in an attempt to pervert the course of justice, albeit that the strategies dictated by the accused and employed by Bilal did not come to fruition by Ms Murtaza actually producing a statement.

22I find that the close proximity in time between the Arunta calls and Bilal’s text messages to Ms Murtaza, together with the emotionally manipulative matters mentioned in the messages, which are the very things that the accused had directed Bilal to convey to Ms Murtaza, give the text messages relevance and significant probative value as to the extent to which the accused was prepared to go in order to pursue his intention of perverting the course of justice.  It is reasonably open to construe the text messages as admissions of the accused, via Bilal, of the accused’s intention to first “soften” Ms Murtaza into giving a statement, prior to crafting such statement by specifically omitting damaging material such as Ms Murtaza’s knowledge of disputes with his wife and beatings.  These text messages are evidence which have the capacity to show that the words uttered by the accused to Bilal in the Arunta calls are not hollow words or “hot air” spontaneously expelled in a moment of frustration, but, rather, deliberate and repeated demonstrations of ongoing intention to craft a statement that omitted matters adverse to his case.” In my view, the insistent and persistent nature of the text messages, together with their manipulative content give them an insidious character, particularly viewed in the context of Bilal and Ms Murtaza never having met or had any contact prior to Bilal’s first communication with her in December 2020.

23As I am satisfied that it is reasonably open to characterise the text messages as admissions relating to the accused’s intention to pervert the course of justice and as I am satisfied that Bilal had a common purpose with the accused of persuading Ms Murtaza to provide a statement the contents of which would be crafted by the accused to be in his favour by omitting damaging matters known by Ms Murtaza, I rule that the text messages may be adduced in evidence by the prosecution pursuant to s87(1)(c) of the Evidence Act.

24Although not argued with any particularity, I find no basis for excluding the material which I found to be admissions pursuant to s90 or pursuant to the general discretion in s135 of the Evidence Act.