R v Qaumi (No 27)

[2016] NSWSC 551

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 27) [2016] NSWSC 551
Hearing dates:	2 May 2016
Date of orders:	03 May 2016
Decision date:	04 May 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	(1) Allow the tender of the four firearms. (2) The words “used in the Chokolatta Café shooting” in the bottom dialogue box in exhibit VD 31(2) is not admissible. (3) The chart (Exhibit VD QQ) is not admissible in its present form. (4) In relation to (3), note that two separate charts in conformity with this judgment would be admissible.
Catchwords:	CRIMINAL LAW – evidence – objection to tender of firearms – probative value – guns used in shootings subject to the charges – no evidence of any danger to the jury – submission that jury might use the guns as “toys” rejected CRIMINAL LAW – evidence – charts summarising ballistics evidence – where no ballistics link between bullets and weapon – potential to mislead – purpose of s 50 Evidence Act 1995 (NSW)– two separate charts admissible – single charge not admissible
Legislation Cited:	Evidence Act 1995 (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.

Judgment

1. Counsel for Jamil Qaumi raises objection to evidence expected to be elicited in the course of the testimony of the Crown’s next witness who is expected to give expert evidence in relation to parts of the ballistics material seized in the course of the police investigations into a number of shootings, five of which are subject to the current 24 count indictment. The objections fall into two categories. The first is an objection to the tendering of four firearms that were seized in the course of the police investigation. The second is a series of specific objections relating to two charts that are proposed to be tendered by the Crown in the course of the officer’s evidence.

tender of the firearms

2. Two firearms were seized in the search of a Mazda motor car shortly after the shooting that has been referred to throughout as the “Chokolatta Café shooting”. The Crown case is that a shotgun was located by police when they examined a Mazda motor vehicle at the scene and that the revolver was located after the car was taken back to a police garage. Two other firearms were located along with some drugs in a “duffle” bag. This bag was effectively surrendered to police by one of the informant witnesses. There are various ballistics links between some of the weapons and some of the shootings and it is anticipated that a number of the informant witnesses will give evidence as to which guns were used, where they were stored and by whom they were possessed and used. Some of the witnesses have given evidence describing the guns.

3. As I understand it, the submission is that the evidence is not relevant or that the probative value in the case is very limited and outweighed by its capacity to distract the jury from its task. It was put by counsel for Jamil Qaumi:

“My objection is on the basis first and foremost that the Crown has a significant amount of evidence already tendered in relation to each of the guns, sufficient that there is no value or no probative value to be gained from the tender of the actual physical guns themselves.”

4. Counsel went on to detail the evidence that the jury already has in relation to these weapons. This consisted of detailed photographs taken by the police either in the course of seizing the guns or in the course of examining them. Senior Counsel for Mumtaz Qaumi supported the objection, noting the “plentiful array of photographs” and the fact that a number of witnesses will (or have already) described the weapons. He submitted:

“Your Honour, unless the Crown can point to some forensic point that the actual handling of the weapon can establish, in my submission the use of photographs, as they have been up to date, is a sufficient way of dealing with the problem.”

5. It was suggested that “the safer course is to delay the tender at this stage and see whether some forensic issue arises.” Senior Counsel for Farahd Qaumi supported the objection, particularly the suggestion of delaying the tender, but made no further submissions. Counsel for Mr Kalal supported the objection and adopted the submissions of his colleagues. Counsel for Mr Zarshoy did not seek to be heard.

6. Counsel for Jamil Qaumi submitted that “if the jury are given these items then a number of things adverse can occur”. The first concerned the “safety of the jurors”. No cogent submission was made in support of that submission that the guns posed any danger to the jury. They have been, to adopt the phrase employed by the police, “rendered safe” (which I take to mean not armed or loaded with ammunition). The fact that they remained unloaded would be confirmed before the items went into evidence, let alone into the jury room. The Court would also ensure that no ammunition was available in the jury room.

7. The second “adverse thing” that was identified was that the jury might be “distracted” by the exhibit. They would be “stand out exhibits”, in a very different category to the other exhibits such as photographs, documents and plastic coated maps. It was submitted:

“I think they can be cocked and the trigger can be fired, creating a noise, even though they're empty and have no bullets. Effectively they can turn into, one might think, a toy. A toy that can be played with or messed about with.”

8. I am unable to accept these submissions. There is no basis upon which one could properly or sensibly conclude that the jury would treat the items as toys. Assuming the weapons are admissible, the jury is entitled to inspect them, consider their size and colour and gain some understanding as to how they work.

9. Another problem identified by counsel is that the weapons have been subject to forensic testing, including finger print examination. This means that there may be chemicals on the weapons. While this is probably so, it is a matter that commonly arises in criminal trials and the jury can be provided with gloves.

10. Another argument was to the effect that the integrity of the exhibits should be maintained in case further forensic testing needs to be undertaken. Counsel conceded that the accused do not seek to undertake such testing but that the investigators or Crown may, at some future time, need to examine the weapons and to undertake DNA or other forensic testing. This is a matter of speculation and a matter for the Crown to consider. It is not a matter that gives rise to some unfair prejudice to the accused.

11. There is no real substance to the objection to the tender of the weapons. They are obviously relevant – it is the Crown case that they were used in the shootings or form the basis of the possession charges. The photographic evidence is no substitute for the items themselves. There has already been evidence that demonstrates that the photography itself and the method of printing means that the colours depicted in the photographs can be misleading.

12. While counsel eschews any dispute relating to the nature, appearance and function of the weapons, the Crown is entitled to prove its case. As the Crown Prosecutor put it, rather bluntly:

“For a start, the relevance is that they are said to be the weapons used in offences. When Mr Young says if the Crown be on stronger ground, if some forensic purpose, what more do you need than it is the actual firearm said to be used in offences?”

13. Given the questions that have been asked of the eyewitnesses and crimes scene police to this point and the attack that is anticipated to be made on the informant witnesses, the evidence has real and significant probative value.

14. I am unable to identify any danger of unfair prejudice.

15. The Crown pointed out that the items are currently in sealed plastic bags and the jury would not actually have access to the weapons. This was in answer to the submission that the jury might use the weapons as “toys”, or be exposed to chemicals or interfere with the integrity of the exhibits if future testing is required. These points are all validly made. However, if the jury requested that the sealed bags be opened, as presently advised and subject to further submissions, I would be inclined to allow the jurors to access the actual exhibits. However, it is unnecessary to decide that point at this stage.

16. For those reasons, I am unable to uphold the objection to the tender of the weapons. The items themselves are admissible.

the charts

17. The Crown seeks to place before the jury a number of charts in order to make the ballistics evidence more readily understandable. I understand that there is a ballistic chart in relation to each of the four weapons. In the course of the lengthy pre-trial hearing I was provided with copies of drafts of these charts. However, there have been substantial changes made to the charts since that time. When the argument commenced there was a little controversy over the precise form of the charts because changes had already been made following correspondence between the parties. Once this controversy was resolved, it emerged that objection is taken to a single part of the chart relating to the “Bentley Sawnoff Shotgun – serial number A548924” and to a number of parts of the chart relating to the “0.38 Revolver Serial Number J 117163”.

18. The two relevant charts were tendered on the voir dire by counsel for Jamil Qaumi and became exhibit VD 31(1) (the .38 revolver) and VD 31(2) (the shotgun). The parts to which objection was taken were highlighted in orange. The Crown tendered the current version of the charge relating to the 0.38 revolver. It became exhibit VD QQ. It demonstrated that a number of the complaints were acknowledged and amendments had been made.

The Bentley Sawnoff shot gun

19. There was only one objection to the chart relating to this firearm. In a box at the bottom of the chart it refers to a “Blue Mazda 3 used in the Chokolatta Café shooting and recovered in Railway Street, Parramatta”. The objection is to the italicised words and the basis of that objection is that the ballistic evidence does not establish that the car was used in the Chokolatta Café shooting.

20. This basis of the objection is correct. There is a circumstantial case that the car was used in the shooting and there will be (as I understand it) direct evidence that the car was used in the shooting. However, the ballistics evidence does not establish that fact.

21. Accordingly, the words “used in the Chokolatta Café shooting” in the bottom box of exhibit VD 31(2) is not admissible.

The 0.38 revolver J 117163

22. Most of the objections taken and identified by orange highlighting in exhibit VD 31(1) have been catered for in the amended document, exhibit VD QQ. However, the most significant objection remains in issue. This concerns the link between this 0.38 revolver and the shooting at the Chokolatta Café.

23. The chart in question has a photograph of the weapon in the bottom right hand corner. That has a series of lines leading to (i) a photograph of the Mazda (in which gun was located), (ii) three fired cartridge cases located in a drain 79 metres away that have been ballistically linked to the weapon and (iii) a series of boxes and a photograph concerning the Hamzy shooting and a number of bullets that have been ballistically linked to that shooting. There is no objection to those parts of the chart.

24. The objection concerns what is depicted in the top left of the chart. Here there is a photograph of damage to the BMW car that was targeted in the shooting outside the Chokolatta Café and a dialogue box noting two bullets recovered from the inside door of that vehicle. There is then a line that leads to a dialogue box that states:

“Alan Dusting concludes that the bullets [with reference to two exhibit numbers] have insufficient detail to eliminate or identify that they were fired from the revolver …”

25. The complaint is that there is no ballistic link between the bullets recovered in the BMW and the weapons that is the subject of the chart. In the original version of the chart, there was a line between the photographs of the gun, the dialogue box as just described and the photographs of the damage to the BMW and the dialogue box describing recovery of the bullets. The Crown has removed the line. This highlights the point that is made by counsel for Jamil Qaumi. Any link between the particular weapon and this shooting is not based on the ballistics evidence.

26. There is a circumstantial case that links the 0.38 revolver to the Chokolatta Café shooting. In summary that circumstantial case includes:

• The revolver was found in the same car as the shotgun.

• The shotgun is linked (ballistically) to the shooting.

• Fired cartridge cases found 79 metres from the car are linked ballistically to the gun.

• A fingerprint said to match Mr Kalal was located on the weapon.

• One of the two bullets located in the BMW was identified as 0.38 calibre ammunition (a fact that is not mentioned in the chart but which emerged in the course of argument).

27. The Crown also points out that it can reasonably be expected, given the opening statements, things said in argument and the approach to cross-examination, that Mr Kalal’s case is that he was present and fired the weapon.

28. It is also expected, as I understand it, that informant witnesses will give direct evidence relevant to the issue.

29. I accept that there is likely to be a strong case that the 0.38 calibre revolver was used in the Chokolatta Café shooting. However, that case is not dependent on the ballistics evidence, and only receives faint support in that evidence. The faint support is the calibre of one of the two damaged bullets recovered from the BMW.

30. I accept Jamil Qaumi’s submission that the reference to the “EVENT: Shooting of blue BMW (registration plate CD 858B) outside of the Chokolatta Café in Bankstown on 7 November 2013” should not appear on the ballistics chart relating to 0.38 Revolver J117163. While the removal of the line linking the gun to the event reduces the potential for the chart to mislead the jury, it does not eliminate it. The potential for the chart to be misleading arises from the very fact that the “EVENT” is on the chart that relates specifically to a particular weapon when there is no direct ballistics evidence linking the gun to the event.

31. The Crown did not refute the suggestion that it attempts to elicit the evidence in this form pursuant to s 50 of the Evidence Act 1995 (NSW). That section provides:

“50 Proof of voluminous or complex documents

(1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.

(2) The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has:

(a) served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary, and

(b) given each other party a reasonable opportunity to examine or copy the documents in question.

(3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section.”

32. It is clear that the purpose of this provision is to facilitate the understanding by the tribunal of fact of evidence considered to be complex or voluminous. None of the accused seek to argue that the use of the charts does not otherwise comply with the purpose of s 50 or that the pre-requisites of that section are not met. However, the possibility that a summary (or, in this case, a chart) might mislead the tribunal of fact is directly contrary to the purpose of the section. That is the situation here.

33. In its current form, the chart is not admissible. However, if the EVENT, photograph and dialogue boxes relating to the bullets recovered from the BMW were removed and made as part of a separate chart, both charts would be admissible. I understand that there is no objection to the evidence if it is adduced in that way.

34. For those reasons, my ruling is that the chart (Exhibit VD QQ) in its present form is inadmissible. However, as part of that ruling I note that a separate chart relating to the bullets would be admissible. That separate chart could also refer to the evidence relating to the calibre of one of the bullets.

orders

35. In summary, my rulings on these objections are as follows:

1. Allow the tender of the four firearms.

2. The words “used in the Chokolatta Café shooting” in the bottom dialogue box in exhibit VD 31(2) is not admissible.

3. The chart (Exhibit VD QQ) is inadmissible in its present form. Note that two separate charts in conformity with this judgment would be admissible.

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Decision last updated: 24 November 2016