R v Qaumi (No 38) - [2016] NSWSC 743

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 38) [2016] NSWSC 743
Hearing dates: 7 June 2016
Date of orders: 07 June 2016
Decision date: 07 June 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Application for leave to revive memory granted.

Catchwords: CRIMINAL LAW – application by Crown to revive memory in court – telephone numbers – not a memory test – leave granted – no point of principle
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

During the course or the examination of a witness known as Witness E, the Crown sought leave under s 32 of the Evidence Act 1995 (NSW) for the witness to revive his memory in relation to the mobile telephone numbers of three relevant people. Senior Counsel for Farhad Qaumi opposed the grant of leave. Leave was granted for the following reasons.
Section 32 of the Evidence Act provides:

“32 Attempts to revive memory in court
(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account:
(a) whether the witness will be able to recall the fact or opinion adequately without using the document, and
(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that:
(i) was written or made by the witness when the events recorded in it were fresh in his or her memory, or
(ii) was, at such a time, found by the witness to be accurate.

(3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.
(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.”

When asked about the telephone numbers the witness indicated that…

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.

Continue reading R v Qaumi (No 38)

Details

AGLC: R v Qaumi (No 38) [2016] NSWSC 743
Case: [2016] NSWSC 743
Decision Date: 07 June 2016

CaseChat Overview and Summary

In this case, the Crown applied to the court to revive the memory of a witness, Qaumi, in relation to telephone numbers. The application was made in the context of a criminal case. The application was made to the Supreme Court of New South Wales. The Crown sought to have the witness's memory refreshed using telephone records, which would assist in identifying the numbers. The legal issue at hand was whether the use of telephone records to assist a witness in recalling details constituted a form of reviving memory, which is permitted under the law, or if it amounted to a more formal memory test, which would require leave from the court.

The court considered the distinction between using records to assist in refreshing a witness's memory and conducting a formal memory test. It was established that the use of telephone records in this manner was not a formal memory test but rather an ordinary part of the witness's recollection process. Consequently, the court found that the application did not require leave under the relevant statute. The court granted leave for the Crown to use the telephone records to assist the witness, emphasising that this was not a point of principle that warranted further judicial consideration.

The court's decision was based on the interpretation of the law concerning the revival of memory and the nature of the assistance provided to the witness. The court held that the use of telephone records to assist in refreshing a witness's memory did not constitute a formal memory test and thus did not require leave. This decision clarified the boundaries of what constitutes a formal memory test under the law and provided guidance for future cases involving similar applications.

No further orders were made by the court beyond granting leave for the Crown to use the telephone records as part of the witness's recollection process. The case concluded with the court affirming the distinction between memory assistance and formal memory testing, providing a clear direction for similar future applications.

Orders