R v Qaumi (No 34) - [2016] NSWSC 677

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 34) [2016] NSWSC 677
Hearing dates: 23 May 2016, 27 May 2016
Date of orders: 31 May 2016
Decision date: 31 May 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
(1)   Evidence of calls between Farhad Qaumi and Mohammad Hamzy is admissible.
(2)   Evidence of the call between Witness L and Mahmoud Sanoussi at 22:02:50 on 15 July 2013 (Product Number 23816) is admissible.
(3)   Subject to any further argument, oral evidence of Witness L to put those calls in context is admissible.
(4)   All of the remaining calls (Product Number 23829, 18767, 19095, 19132, 24468, 19330, 24474, 24481 and 19413) are inadmissible.

Catchwords: CRIMINAL LAW – telephone intercepts – evidence of calls between accused and target of shootings – where self-defence is raised – evidence relevant to relationship between the two gang leaders – evidence relevant to self-defence – initially no transcript or translation prepared – parts of conversations in Arabic – السجن – references to accused being in prison – p-prejudicial material – potential to derail trial – relevance of conversations between third parties in relation to debt collection – whether hearsay – first hand hearsay – statements as to Witness’s state of mind and intention – relevant and admissible – other conversations of limited probative value – undue waste of time
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Qaumi & Ors (No 6) [2016] NSWSC 115
R v Qaumi & Ors (No 10) [2015] NSWSC 211
R v Qaumi & Ors (No 13) [2016] NSWSC 337
R v Qaumi & Ors (No 24) [2016] NSWSC 505
Category: Procedural and other rulings
Parties:
Regina
Farhad Qaumi
Mumtaz Qaumi
Jamil Qaumi
Mohammed Zarshoy
Mohammed Kalal
Mohammed Hamzy (Intervening)
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

The Crown seeks to lead evidence of a number of recorded telephone calls that took place between 15 and 17 July 2013 between a number of men including:

The accused (Farhad Qaumi).

A witness and member of the Brothers for Life at Blacktown (Witness L). [1]

The alleged leader of the Brothers for Life Bankstown (Mohammed Hamzy) who has already given evidence and identified his voice and that of Farhad Qaumi on one of the calls.

Another member of the Brothers for Life Bankstown (Mahmoud Sanoussi).
1. The names and identities of a number of witnesses have been suppressed: see R v Qaumi & Ors (No 10) [2015] NSWSC 211 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 677
Decision Date: 31 May 2016

CaseChat Overview and Summary

The case of R v Qaumi (No 34) involved the appellant who was on trial for shooting at two individuals, with one shot fatally wounding the deceased. The appellant raised self-defence as a plea. The trial judge admitted intercepted telephone conversations between the appellant and the deceased, which were recorded over a period of time. The recordings contained references to the appellant being in prison, which were considered prejudicial and potentially distracting to the jury. Additionally, conversations about debt collection between third parties were introduced as evidence, raising questions about their relevance and admissibility as hearsay.

The legal issues before the court were whether the intercepted telephone conversations were admissible as evidence, and if so, which parts of the recordings were relevant to the appellant's plea of self-defence. The court also had to consider whether the conversations about debt collection between third parties were admissible as relevant evidence or if they constituted hearsay that was inadmissible.

The court held that the intercepted telephone conversations were admissible as evidence, with specific relevance to the relationship between the two gang leaders and the appellant's plea of self-defence. The court found that the references to the appellant being in prison, while prejudicial, were not so significant as to derail the trial. However, the conversations about debt collection between third parties were deemed to be of limited probative value and risked wasting the court's time. The court ultimately determined that the evidence was relevant and admissible, as it provided insight into the relationship between the two gang leaders and the appellant's state of mind and intentions.

The final orders of the court were that the intercepted telephone conversations were admissible as evidence, with specific relevance to the appellant's plea of self-defence. The court also held that the conversations about debt collection between third parties were of limited probative value and risked wasting the court's time, but were still admissible as relevant evidence.

Orders