R v Qaumi and Qaumi (No 9)

[2016] NSWSC 1746

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Qaumi (No 9) [2016] NSWSC 1746
Hearing dates:	6 December 2016
Date of orders:	06 December 2016
Decision date:	06 December 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	The evidence is admissible.
Catchwords:	CRIMINAL LAW – admissibility of evidence – DNA evidence – secondary transfer – where accused adduced DNA evidence – where Crown witness unable to explain presence of DNA on item associated with murder weapon – where Crown seeks to explain evidence by expert testimony – where evidence introduced on final day of crown case – whether unfair – whether evidentiary foundation laid – evidence admissible.
Category:	Procedural and other rulings
Parties:	Regina Farhad Qaumi Mumtaz Qaumi
Representation:	Counsel: K McKay (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami)   Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten & Co (M Quami)
File Number(s):	Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260
Publication restriction:	Not for publication.

EX TEMPORE Judgment (REVISED)

1. The trial has reached what is expected to be the final day of the Crown case and the Crown seeks to lead evidence from an expert witness called David Bruce.

2. Mr Bruce gave evidence in the jury trial which preceded, along with some small overlap, the present trial. He is an expert in, amongst other things, the transfer of DNA and in the previous trial he gave evidence of ways in which the DNA of one person can come into contact or be located on an object even though the person had not had direct contact with the object. It was subject to both evidence-in-chief and cross-examination and the transcript of the relevant parts of his evidence in the previous trial have been placed before me. [1]

   1. Ex VD-F.

3. Both accused were parties in that trial and were represented by the same Senior Counsel who appear in the present trial. The attempt by the Crown to adduce this evidence on the final day of the trial arises in the circumstances where, earlier in the trial, through the evidence of Detective McAneny, a DNA certificate was tendered in the defence case as exhibit 1. It disclosed that a female DNA profile was discovered on a Glad resealable bag which was part of the packaging of what is alleged to be, and as I understand it not disputed to be, the firearm that was used to murder Joseph Antoun.

4. The evidence, as I say, was introduced through a detective and it was established through the cross-examination of that detective that the female DNA profile was consistent with that of the DNA profile of a person called [redacted]. The cross-examination also established that [redacted] was the partner of Witness L.

5. Subsequently, Witness L was called to give evidence. He is a critical witness in the prosecution case because he acknowledges that he was the assassin who murdered Joseph Antoun by shooting him several times. Witness L’s evidence is that he was engaged to carry out that act by the accused men.

6. The defence asserts that, whilst Witness L was undoubtedly the shooter, he was engaged by somebody else; specifically engaged by Witness M, and possibly at the instigation of the now deceased man Pasquale Barbaro. However, obviously enough, the defence do not need to establish just who engaged Wintess L; rather, the Crown has to establish beyond a reasonable doubt that it was the accused who engaged him. But certainly one of the theories being posited in the defence case through the cross-examination, both of investigating police and also Witnesses L and M, is that somebody else was behind the shooting and a number of possible suspects have been identified in the course of the cross-examination.

7. There is a conflict between what Witness L says happened after the shooting with the murder weapon and what the defence says happened. The murder weapon was ultimately located in a motor vehicle being driven by a man called Witness K. On analysis, the DNA certificate established that the packaging in which it was found contained the DNA of [redacted]. Witness L says that he was engaged to dispose of the gun by the Qaumi brothers. There is no DNA or other evidence that connects the Qaumi brothers either to the gun or to any of the bags in which it was located. Witness L was cross-examined about his version of events and specifically about the location of his partner’s (that is [redacted]’s) DNA on the Ziplock bag. That occurred on 30 November 2016, which is to say the twenty-first day of the trial. He was asked these questions at transcript page 759:

“Q. I just want to be clear about this. The Ziploc bags you say did not come from your house?

A. Yes.

Q. So on your account there would be no way, for example, your partner’s DNA might have been on one of those Ziploc bags?

A. Yes.”

8. It was then put to him:

“Q. You see, what I put to you is those Ziploc bags were yours, that you were the one who got the Ziploc bags to conceal any traces of the gun being chemically detected; am I right or wrong?

A. Wrong.”

9. The Crown seeks to elicit evidence from Mr Bruce that may provide a different explanation, namely, what is commonly called “secondary transfer” of the presence of Witness L’s partner’s DNA on the bag in which the gun was located. The nature of his evidence, which is set out in exhibit VD-F, is expected to be that the DNA can be transferred there if two people have been in contact with one another and then the second person touches the object on which the DNA is found. It is a common enough and well-known concept in the criminal law.

10. However, the defence submits that the evidence ought not to be allowed for two main reasons. The first is that there is a lack of evidentiary foundation for the assertion that secondary transfer is a reasonable or possible explanation for [redacted]’s DNA being there. It was put that the Crown Prosecutor ought to have laid such an evidentiary foundation in re-examination. On that basis, as I understand the submission, the evidence is not relevant because it is incapable rationally to affect the assessment of the relevant facts in issue. Even if that submission was not accepted, the submission is that the evidence would have very little probative value in circumstances where there is this lack of evidentiary foundation.

11. The second basis upon which it is submitted - and in one way it is tied up with the first[2]  - is the unfairness of allowing the Crown to elicit the evidence on the last day of the trial in circumstances where notice was given to the defence shortly before 9am this morning.

    2. See s 137 Evidence Act 1995

12. The Crown submits, in response to that, that there is in fact an evidentiary foundation in that the evidence elicited in cross-examination included the fact that [redacted], whose DNA was found on the bags, was present in the house occupied by Witness L at least in the day or so before the packaging of the gun. Reference was made to the cross-examination by Mr Stratton at 751 to 752 and there seems to be no dispute that [redacted] was present in the house.

13. The kind of re-examination that the defence says ought to have been undertaken would have more clearly established the possibility of physical contact between either the two people involved (that is Witness L and [redacted]) or [redacted] and other objects with which Witness L may have had contact.

14. I accept the Crown’s submission that there is an evidentiary foundation for the evidence. It will be a matter for submissions as to whether that evidentiary foundation is so weak or tenuous that I ought to give any DNA evidence about secondary transfer very little weight.

15. I also accept the Crown’s submission in relation to the question of unfairness. It is the case that no DNA evidence was elicited or relied upon by the Crown. In fact, one of the weaknesses in the Crown case, as I anticipate the accused’s submission will be, is the complete absence of any forensic evidence connecting the Qaumi brothers (that is the two accused) to any item relevant to the murder of Joseph Antoun.

16. It is also anticipated that the defence will go further than that and rely on the cross-examination of Witness L, to suggest there is simply no explanation for his partner’s DNA being on the bags.

17. It having been introduced by the accused in that way, I am unable to conclude that it would be unfair or unfairly prejudicial to allow the Crown to adduce what evidence it can to provide some other explanation for the evidence elicited first through the police officer early in the trial and then through the cross-examination of Witness L quite a bit later in the trial.

18. I think the evidence is relevant. I think the evidence has potential to have some probative value to an issue that I will need to determine and that goes beyond merely the credibility of Witness L, but also to the the disposal of the firearm that was ultimately located in Witness K’s motor car.

19. I do not accept that the evidence has any great capacity to operate unfairly. If the accused need some additional time to obtain further instructions or further information on the concept of secondary transfer, then they can make application to obtain it.

20. I am satisfied that the evidence is admissible and I propose to allow it.

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Endnotes

Decision last updated: 16 December 2016