R v Qaumi (No 42)

[2016] NSWSC 887

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 42) [2016] NSWSC 887
Hearing dates:	27 June 2016
Date of orders:	27 June 2016
Decision date:	27 June 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	The question is disallowed.
Catchwords:	CRIMINAL LAW – objection by accused to cross-examination of roll-over witness by co-accused – witness participated in shooting – questioning concerning witness’s belief as to person on whose behalf he was acting – question not asked to establish truth of witness’s belief – whether relevant to co-accused defence of duress – evidence not relevant – if relevant, evidence would be excluded in exercise of discretion
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.

EX TEMPORE Judgment (revised)

1. Mr Clarke, on behalf of Mr Kalal, seeks to ask this question at the conclusion to a series of questions about the fact that his client was acting essentially at the direction of Jamil Qaumi:

“In your mind, who were you doing the shooting for?”

2. Senior Counsel for Farhad Qaumi objects to that question. He submits that the evidence is not relevant to any issue in the trial.

3. Mr Clarke has indicated that he is not seeking to elicit the answer to establish the truth of the answer. If that be the case, there seems to be no relevance to the answer. The question is directed to the witness's belief and I cannot see any use for the evidence if it is not because the witness genuinely held the belief [presumably that he was “doing the shooting for” Farhad Qaumi].

4. Going beyond that, ultimately what this witness believed that he was doing does not rationally impact upon the probabilities concerning the issues that arise in Mr Kalal's case. In particular, establishing that somebody else may have believed that they were doing the shooting for Farhad Qaumi, who was the leader or the “general” of the group, does not establish that Mr Kalal held the belief. That is so even if it is accepted - although it was not articulated in argument - that if an order came from Farhad Qaumi there was more reason to be terrified and to act upon the order because of his reputation and earlier actions instilling fear and intimidation in the group.

5. Having regard to the provisions of the Evidence Act 1995 (NSW) as to relevance, I do not find the evidence to be relevant. Even if it does have some peripheral relevance, I would exclude it under s 135 of the Evidence Act because of its potential prejudicial effect in the case of the co-accused Farhad Qaumi.

6. There is ample material adduced in Mr Clarke’s cross-examination (without objection) in the past short while upon which he may be able to found certain submissions in respect of the issues to which he says this question goes. An answer to that last question, particularly if not directed to the truth of the witness' belief, will not advance that cause in any meaningful way, so its probative value is slight and its danger of unfair prejudice to Mr Qaumi is significant.

7. The question is disallowed.

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Decision last updated: 30 November 2016