R v Qaumi (No 22)

[2016] NSWSC 403

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 22) [2016] NSWSC 403
Hearing dates:	7 and 11 April 2016
Date of orders:	11 April 2016
Decision date:	11 April 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Photograph 17 excluded. ISRAPS presentation admitted over objection.
Catchwords:	CRIMINAL LAW –
Legislation Cited:	Evidence Act 1995 (NSW) Jury Act 1977 (NSW)
Category:	Procedural and other rulings
Parties:	Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Mohammed 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 (Zarshoy) G Clarke (Kalal)   Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten& Co (M Quami) Bannisters Lawyers (J Quami) Zahr Lawyers (Zarshoy) Hallak Law (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 – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939
Publication restriction:	No publication until the conclusion of the trial.

EX tempore Judgment

1. On 7 April 2016, Jamil Qaumi raised an objection to the Crown's proposed tender of one photograph, which is numbered 17 of 258, and a DVD that contains something known as an ISRAPS presentation. The ISRAPS is created by taking a series of photographs of and near a crime scene and then, by use of a particular software program, creating a presentation through or by which the user or viewer is able to move between various camera locations, to pan around 360 degrees from each point of view, and to zoom in and out while viewing the individual photographs.

2. In this instance, the photographs from which the ISRAPS was derived were taken from a number of locations on Bardo Circuit, Revesby Heights and within the garage of the residence at 28 Bardo Circuit, Revesby Circuits. That is the address where the shooting of Mahmoud Hamzy and Omar Ajaj took place.

3. In both cases, the objection is that the probative value of the evidence is outweighed by the danger of unfair prejudice. It is an objection grounded in s 137 of the Evidence Act 1995 (NSW).

4. The potential prejudice arises from the fact that the scene depicts the bloody aftermath of the shooting. The parties had reached agreement as to the exclusion of a number of the photographs. In particular a photograph numbered 18 of 258 was excluded by agreement and this was tendered on the voir dire as defence exhibit VD 24. The concern raised by counsel was that the jury could see the same image if it used the ISRAPS, focused on the relevant area and zoomed in.

5. The parties arranged for this to be rehearsed in the absence of the jury. I was provided with a brief overview of the use that the Crown intended to make of the ISRAPS while tendering the bundle of photographs and sketch plans taken by Senior Constable Lee, a crime scene officer who had attended 28 Bardo Circuit. I viewed what counsel for Jamil Qaumi contended was the most troubling image able to be obtained from the ISRAPS.

6. In order to allow the jury to return and for the trial to continue, I made two rulings. The first was that photograph 17 was to be excluded. The second was to allow the Crown to use the ISRAPS for the purpose of presenting the crime scene evidence but to have the DVD marked for identification and to defer the issue of whether the DVD could be tendered and, if so, whether it would be allowed to be taken to the jury room during the trial or during deliberations.

7. Counsel did not take objection to the ISRAPS being used while being presented by the Crown Prosecutor in the presence of the parties, Rather, the concern was (and remains) allowing the jury to use the DVD in the privacy of the jury room when it would be able to focus on particular parts of the images and zoom in on parts, including the area depicted in exhibit VD 24.

8. This morning, at my request, the ISRAPS was again set up so that I am able to see, as I speak, the particular still image at what I understand to be maximum zoom and this is the image that is said to raise the same issues that led the Crown to agree to exclude the photograph number 18 which is exhibit VD 24. A “screen shot” of this image was tendered on the voir dire. [1]

   1. Ex VD LL.

Photograph 17

9. My reason for excluding photograph 17 was that the same image but taken from a greater distance or using a lesser zoom is contained in photograph 15 of 258. The only added element in photograph 17 is that there is a right angled ruler providing the viewer with a better idea of scale. I determined that if scale was significant, oral evidence could be given to provide that information. Photograph 17 had no probative value beyond that of photograph 15. Further, the close-up view shows an area of blood stain that could potentially arouse an emotional response. In the end, it was the lack of probative value, rather than the potential for prejudice, that caused me to exclude photograph 17.

10. I accept that the image is somewhat disturbing and that it may, as counsel submitted, be interpreted as showing brain matter in addition to blood. There is no evidence that it is brain matter and it is really a matter of speculation. In any event, photographs such as these are commonly tendered in murder trials and they are not the kind that would arouse the kind of emotional response that will cause the jury to lose its objectivity.

The ISRAPS presentation

11. The ISRAPS presentation is a valuable evidentiary tool that allows the tribunal of fact "virtually" to move around the crime scene and get a much better perspective and understanding of the surroundings. Of course, it is not perfect but it gives a better understanding of what is depicted in the photographs, the angles from which the photographs were taken and the physical dimensions and qualities of the crime scene.

12. The image that was shown in the course of the voir dire, [2] depicts the same area of the room as that shown in exhibit VD 24 (photograph 18) that the prosecution agreed to take out of the bundle of photographs. However, the fact that the Crown, in deference to concerns raised by defence counsel, agreed to the removal of the photographs ought not to be seen as a concession of inadmissibility. It may be that it is simply a demonstration of the restrained approach taken by the Crown and its sensitivity to matters that troubled counsel for the accused.

    2. Transcript (“T”) 237-238; Ex LL.

13. Photograph 18 shows a "copper coloured impact damaged bullet", near a police marker G. It appears to be an area of pooling of blood. Immediately underneath an inverted G on the marker is an item which is I think self-evidently (although there was some doubt raised in argument) [3] a tooth. I take it that this is the item, perhaps along with what counsel says may be fluid from the brain, referred to in argument as "possible body parts". [4]

    3. T 237.

    4. T 234, 237.

14. Counsel submitted that the image derived from the ISRAPS is "even worse" than the image in exhibit VD 24. I am unable to agree. Even at the highest zoom allowed by the ISRAPS the tooth is unable clearly to be made out. The most that can be said is that it may be a tooth.

15. The zoom on photograph 18 creates a closer image, although counsel is correct when she submits that the image derived on the TV screen from the ISRAPS has better clarity. Even allowing for the possibility or fact that the image derived from the ISRAPS depicts a tooth, and that a jury might interpret part of the blood stain as being fluid from the brain, I am not satisfied that the probative value of the ISRAPS is outweighed by the danger of unfair prejudice to the accused.

16. As the Crown Prosecutor submitted, this is a murder trial. The allegation is that the deceased was shot in the head at close range. The images with which we are dealing with far removed from the kind of gruesome images that are often the subject of objections such as these.

17. I accept that as lawyers practising in this field of endeavour, we become somewhat immune to the emotional reactions that may be provoked in a lay observer. However, even allowing for the sensitivities of some members of the jury, I am of the view that there is no great capacity for the ISRAPS to be misused or to create a danger of unfair prejudice. At the same time it has a high degree of probative value and is a useful tool for a jury in understanding the scene where the alleged murder occurred.

18. I propose, therefore, to allow the Crown to tender the ISRAPS presentation and, when the time comes, to allow the jury to have access to it and the capacity to play it in the jury room.

19. In that last regard, I note that s 55A of the Jury Act 1977 (NSW) specifically provides that a judge may refuse to allow an exhibit to go into the jury room if the safety of the jury would be put at risk. That is not the situation here and it could be argued that the absence of a specific provision would raise a doubt over the proposal (which came from me) that the exhibit not be allowed into the jury room. However, I have little doubt that the Court would have the power to control the use of an exhibit if it has some potential for prejudice.

20. If in the course of the trial counsel is able to draw my attention to some other feature of the ISRAPS presentation that creates a danger of unfair prejudice, I am happy to revisit this issue before the jury retires to deliberate. In the meantime, in the absence of a specific request from the jury, I do not propose to allow the jury to have access to this exhibit in the jury room before it retires to consider its verdicts.

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Endnotes

Decision last updated: 30 November 2016