R v Qaumi (No 4)

Case [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

  1. 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.

  2. 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,…

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

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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