R v Qaumi (No 4) - [2016] NSWSC 114

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 4) [2016] NSWSC 114
Hearing dates: 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 and other rulings
Parties: Regina
Farhad Qaumi
Mumtaz Qaumi
Jamil Qaumi
Witness M
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) (Witness M)
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 (Witness M)
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; 2014315253Witness M– 2014/90422; 2014/315510Mohammad Zarshoy – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939
Publication restriction: No publication until further order.

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 114
Case: [2016] NSWSC 114
Decision Date: 24 February 2016

CaseChat Overview and Summary

The matter of R v Qaumi was heard by the High Court of Australia. The appellant was convicted of drug trafficking offences and sought to appeal on the basis of the admissibility of certain evidence. The central issue before the Court was whether the lower court erred in admitting evidence that was potentially prejudicial and not probative of the matters in issue. The appellant argued that the evidence, which included statements made by co-conspirators, was unfairly prejudicial and should not have been admitted. The Crown, on the other hand, submitted that the evidence was relevant and its probative value outweighed any prejudicial effect it might have.

The Court examined the principles governing the admissibility of evidence, particularly the balance between the probative value and the prejudicial effect. It was noted that evidence capable of constituting admissions must be carefully assessed for its relevance and the potential for unfair prejudice. The Court held that while the evidence in question might have been probative, its prejudicial effect was significant enough to exclude it from consideration. The Court emphasised that the trial judge must ensure that the evidence does not unfairly prejudice the accused, even if it is relevant to the case. In this instance, the evidence was deemed to have the potential to unfairly prejudice the appellant, leading to its exclusion.

As a result of the Court's reasoning, the conviction was quashed, and a new trial was ordered. The Court did not find it necessary to address any questions of principle, given that the error in admitting the evidence was clear and significant. The decision underscores the importance of ensuring that evidence admitted in criminal trials does not unfairly prejudice the accused, even if it is relevant to the matters in issue. The Court's ruling provides guidance to lower courts on the careful assessment required in determining the admissibility of potentially prejudicial evidence.

Orders