R v Qaumi (No 28)

[2016] NSWSC 552

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 28) [2016] NSWSC 552
Hearing dates:	2 May 2016
Date of orders:	03 May 2016
Decision date:	04 May 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Hearsay evidence excluded (see paragraph [8])  Answer 200 admitted subject to deletion of the words “’cause my mum’s really sick too” and “like I look like those guys in Parramatta that have steroids, or something. I walk, I look like I’ve got that in me and I’m walking like them.” (see paragraphs [17]-[19]).
Catchwords:	CRIMINAL LAW – interview with child victim – vulnerable witness – evidence of injury and emotional impact of shooting on witness – hearsay – evidence of what child was told by doctors – evidence not admissible – evidence of impact of injuries – probative value – whether answer in the nature of a victim’s impact statement – where no dispute as to element of grievous bodily harm – where no clear indication of formal admissions – evidence admissible
Legislation Cited:	Criminal Procedure Act 1986 (NSW) 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. The accused Mohamed Kalal objects to certain parts of a recorded interview with a witness to whom I will refer as “HZ”. None of the co-accused joined in the objection. The objection relates to a number of specific questions and answers, or parts of answers, contained in an interview dated 24 December 2013 that comprises around 230 questions. The witness received a number of shotgun wounds in the course of what has been referred to as the “Zakaria shooting” (counts 8 and 9 on the indictment). At the time she was 13 years old.

2. Section 306M(1) of the Criminal Procedure Act1986 (NSW) defines a “vulnerable person” as a child or cognitively impaired person. Sections 306S and 306U provide that a vulnerable person may give evidence by way of a recording made by an investigating official. The Crown seeks to adduce some, or all, of the witness’s evidence in chief by means of the pre-recorded interview.

3. A copy of a transcript of the interview was tendered on the voir dire as Exhibit VD PP.

4. There is no issue that the witness is a vulnerable person, that she is entitled to give evidence by this means and that large parts of the interview are relevant and admissible. Exhibit VD PP indicates a number of areas where the Crown has apparently agreed to make deletions from the recording and the transcript.

5. The material that remains in dispute (as between Mr Kalal and the Crown) concern answers that the witness gave about the injuries (both physical and emotional) that she sustained. In some cases, the basis of the objection is that the answer is hearsay – that is, the witness was telling the interviewer what a doctor or doctors had told her or what she understood the hospital notes disclosed. In other instances, the objection appears to be that the probative value of the evidence is outweighed by the danger of unfair prejudice. As counsel put it in respect of one answer (Q 200) “it is like a victim impact statement” [1] . I take this part of the objection to be based on the provision in s 137 of the Evidence Act 1995.

   1. Transcript (T) 1199.

Hearsay

6. It seems that the Crown is in a position to call medical evidence from a doctor or doctors that will explain the extent of the injuries, the medical treatment required and HZ’s prognosis. The Crown does not seek to rely on any exception to the hearsay rule (eg ss 66 and 66A of the Evidence Act). Accordingly, if the evidence is caught by the hearsay rule in s 59 it is not admissible.

7. I accept the objection based on the hearsay rule. It some instances it is clear that the answer is hearsay. In others, it is a reasonable inference to be drawn from the way the answer was given or elicited.

8. The italicised parts of the following questions and answers are not admissible:

“Q 138 O.K.

A. And what it says on my hospital notes, it says twice. Um, like so the lower back was the one that got damaged the most.

Q 139 Yeah.

A. I can show you guys but, it’s really scary and I have over three hundred pellets from the shot, I think it was a shotgun, it says on the notes that it was a shotgun. I’m not sure. Yeah, so…

Q. 140 [12/23] O.K.

A. And I think the other one came out, I don’t know.

Q. 141 O.K.

A. Must have hit the wall or something.”

…

“Q 148 O.K. Do you remember the injuries that you sustained as a result of being shot?

A. Yeah. Um, I have heaps of injuries. My doctor was telling them. My normal doctor, she said there was six pages worth of like injuries, back to back.”

…

Q. 154 Yeah.

A. … [A]nd I think they did, ‘cause I had a pellet or something in my throat and they had to take that out, ‘cause it was really close to hitting my airway or something. Um, I, I don’t know, I have heaps of injuries. Um, spine injury, kidney injury, livery injury, um, a few more, gunshot wound, pellets, um, there’s so much and um, I don’t know, there was heaps.”

…

Q. 157 Do you know why you lost so much weight?

A. … [A]nd that ruined I think my liver or kidney, liver, kidney, something like that…”

Section 137 objection

9. The objection that I take to be based on s 137 concerns question and answer 200:

“Q200 How, how’s it affected your life, like in your day to day life?

A. Oh, I was sort of a person that, I was like the one, me and Masood were the one with the high energy. We were the one’s running around the house, like I can’t do that anymore. I can’t even take a shower properly. I always have to call like my mum, ‘cause my mum lives with me and my sister like helps us and stuff and ‘cause my mum’s really sick too. So, like I can’t even take a shower properly, it’s hard, you know, it’s, like for a 14 year old, I can’t even wear proper clothes. Like this stuff, it’s really hard, last night I got this shirt and it was so hard to find anything because everything is so thin and you can see, like I have so much marks and stuff that I can’t wear anything. I can’t run around, I can’t, I can’t even, like when I used to go shopping, I used to stay there for like hours. I can’t even walk properly anymore, ‘cause I get so much, so much pain in my back, I can’t walk. I, I fell like an old person, I’m just like, you know, I need to sit down. Every two seconds, I’ll be like, “I need to sit down”. And this has affected my mentally and psychically. I can’t walk properly, like I look like those guys in Parramatta that have steroids, or something. I walk, I look like I’ve got that in me and I’m walking like them. And, and life, you now, I can’t sleep overnight because of it.”

10. As I have said, it was submitted that this answer “read like a victim’s impact statement”. It was certainly a very open ended way to ask the question and parts of the answer are not relevant and are apt to create sympathy. However, most of the answer might rationally affect an assessment of whether the witness sustained grievous bodily harm.

11. It was submitted that the fact that the injury constitutes “grievous bodily harm” is not a matter in dispute. Accordingly, so the submission went, much of this answer is of little probative value to any live issue in the trial.

12. Prior to the luncheon adjournment, I asked counsel for each of the accused charged in relation to the Zakaria shooting (that is, all of the accused men except Mr Zarshoy) whether grievous bodily harm was admitted. Each indicated that it was not a matter that was subject to dispute. However, when asked whether there was going to be any formal admission in relation to the matter, counsel was more circumspect. I indicated that I would need to have a “clear indication” of whether the accused would make “formal admissions under the Act”. [2] This was a reference to admissions pursuant to s 184 of the Evidence Act 1995 or agreement as to facts under s 191 of the Evidence Act 1995.

    2. T 1203.

13. Following the adjournment the following exchange occurred with counsel for Mr Kalal:

“HIS HONOUR: Thank you. Where did we get up to? I have read exhibit VDPP. Was there anything else that I needed to know about that before I simply make a decision about the admissibility of those parts that are objected to?

CLARKE: I don't think I can usefully add anything for my part. I have made the objection. I have told you why.

HIS HONOUR: Apart from that there will be an admission to grievous bodily harm, or at least it won't be disputed, what is the extent of that admission in terms of the psychological or emotional impact or injury to HZ which is disclosed in that answer 200? How far does the admission go?

CLARKE: I don't think, to be candid, that we have addressed our mind to that aspect. That is not to say we won't.

HIS HONOUR: I am going to make a decision on this at some point this afternoon.

CLARKE: Of course.

HIS HONOUR: If you don't know what admissions are being made then I will make [the ruling] in the light of that. If you do then I will make it in the light of that. Everybody said they would take instructions, as I understood it, that there would be no issue taken as to grievous bodily harm but over the luncheon adjournment, and I have read the interview in full, I have wondered why the Crown wouldn't be entitled to establish the nature of that grievous bodily harm, including the psychological impact discussed in question 200.

CLARKE: I am not necessarily saying I would take objection. I am just saying it should come from the right quarters. There is a lot of material there is no objection to where she talks about the physical and other, I hope. I am trying not to be artificial in trying to divide things off. I will let your Honour make the decision, if I may, in the light of my answer.”

14. None of the other accused indicated that there was to be any formal admission or agreement as to the facts.

15. In the absence of any clear understanding of what is to be admitted in relation to the issue of grievous bodily harm, and how that admission is to be communicated to the jury, the Crown is entitled to prove the nature of the injury as well as the physical, emotional and psychological impact of the injury. Such evidence can come from doctors, other health care professionals, photographs, family members and from the witness herself. For that reason most of the answer to question 120 is admissible. Any potential prejudice (arising from sympathy) can be cured by direction.

16. However, where evidence is unduly emotive, the probative value of the evidence may be outweighed by the danger of unfair prejudice even allowing for directions to the accused. If I formed that view, the evidence “must” be excluded: s 137. It should be remembered that the shooting of an innocent 13 year old is likely to evoke strong emotions in the jury. Further, at least some parts of the answer are not relevant to any issue in the trial.

17. Applying those principles, the following parts of the answer to question 200 are not admissible:

Lines 5-6 – “and cause my mum’s really sick too”.

Lines 17-19 – “like I look like those guys in Parramatta that have steroids, or something. I walk, I look like I’ve got that in me and I’m walking like them”.

18. If the parties form the view that editing those parts of the answer is impracticable or may create greater prejudice because the editing will be obvious, there are three possible solutions. First, the Crown could elect not to press the evidence. Secondly, I could direct the jury that the interview has been edited to take out irrelevant material. Thirdly, the whole answer could be played and I could direct the jury that it should disregard those parts of the answer identified in the preceding paragraph.

19. Subject to those matters, the answer to question 200 is admissible.

**********

Endnotes

Decision last updated: 30 November 2016