R v Qaumi (No 4) - [2016] NSWSC 1495

Supreme Court

New South Wales

Case Name:	R v Qaumi and Ors (No 4)
Medium Neutral Citation:	[2016] NSWSC 1495
Hearing Date(s):	18-19 February 2016
Date of Orders:	24 February 2016
Decision Date:	24 February 2016
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	The evidence of telephone conversations between Mumtaz Qaumi, Mahmoud Atwa, Faisal Zarshoy and Farhad Qaumi on 11 April 2015 is inadmissible
Catchwords:	CRIMINAL LAW – admissibility of evidence – assessment of probative value – whether evidence capable of constituting admissions – danger of unfair prejudice – evidence excluded – no question of principle
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	DSJ v R; NS v R [2012] NSWCCA 9 Dupas v The Queen [2012] VSCA 328; 218 A Crim R 507 IMM v The Queen [2016] HCATrans 8 R v Qaumi (No 3) [2016] NSWSC 15 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 R v XY [2013] NSWCCA 121
Category:	Procedural rulings
Parties:	Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Amanda Crowe 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) Katiz (Solicitor) (Crowe) R Driels (Zarshoy) J Nicholson SC (Kalal) Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten& Co (M Quami) Bannisters Lawyers (J Quami) Oxford Lawyers (Crowe) Zahr Lawyers (Zarshoy) Hallak Law (Kalal)
File Number(s):	Farhad Quami - 2014/6809; 2014/315201; 2014/315252 Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260 Jamil Quami - 2013/336086; 2014/18164; 2014315253 Amanda Crowe – 2014/90422; 2014/315510 Mohammad Zarshoy – 2014/316236 Mohammad Kalal - 2013/344739; 2014/66939
Publication Restriction:	Nil.

JUDGMENT

Two of the accused (Farhad Qaumi and Mumtaz Qaumi) object to the tender of evidence relating to telephone conversations between them and a third man (Mahmoud Atwa) on 11 April 2015. The learned Crown prosecutor presses the tender of the evidence. It is not suggested that the evidence is admissible against the remaining four accused persons. Details of the Crown case and some of the evidence proposed to be adduced by the Prosecutor have been set out in earlier judgments, in particular the judgment in relation to whether the counts on indictment should be severed or separated: see R v Qaumi (No 3) [2016] NSWSC 15.
Summaries of the telephone intercepts were tendered on the voir dire as part of exhibit CC. Four of the recordings (identified by reference numbers PN809, PN814, PN816 and PN826) were tendered as Exhibit DD and played in Court. I was also provided with the full transcripts of the calls as an aide memoir. The prosecution submits that some of the things said by Mumtaz and Farhad Qaumi constitute an admission or, at least, would be capable of being used as an admission by a jury acting reasonably. This submission is based on the accused saying at various times that one of the co-accused (Mr Zarshoy) may “roll on us” or “snitch on us brother, he’ll give us up,…

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 4)

Details

AGLC: R v Qaumi (No 4) [2016] NSWSC 1495
Case: [2016] NSWSC 1495
Decision Date: 24 February 2016

CaseChat Overview and Summary

In the matter of R v Qaumi, the appellant stood trial in the Supreme Court of New South Wales for various serious criminal charges, including aggravated robbery and assault. The appellant challenged the admissibility of certain evidence presented by the prosecution, claiming it was unfairly prejudicial and lacked sufficient probative value. The central issue for the court to determine was whether the evidence in question could be deemed as admissions by the appellant and, if so, whether its probative value outweighed the potential for unfair prejudice to the appellant's case.

The court examined the nature of the evidence and the circumstances under which it was obtained, considering the principles laid out in previous case law regarding the admissibility of statements that may be considered admissions. The court recognised that while such evidence could be highly probative, it must be balanced against the risk of unfair prejudice, which could unfairly sway the jury against the appellant. The court was required to perform a nuanced analysis of the evidence, weighing its relevance and probative value against the potential for prejudice.

Upon conducting this analysis, the court determined that the evidence in question did indeed possess a significant degree of probative value in establishing the appellant's involvement in the alleged crimes. However, the court found that the potential for unfair prejudice substantially outweighed the probative value. The court was particularly concerned about the risk that the evidence could lead the jury to make a decision based on an improper basis, such as sympathy or bias, rather than on the merits of the case. Consequently, the court ruled that the evidence should be excluded, as its admission would not serve the interests of justice. The court did not find it necessary to establish a new principle of law in this matter, relying instead on established principles and precedents.

Orders