R v Qaumi (No 43)

[2016] NSWSC 889

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 43) [2016] NSWSC 889
Hearing dates:	27 June 2016
Date of orders:	27 June 2016
Decision date:	27 June 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Application to ask further questions in cross-examination granted.
Catchwords:	CRIMINAL LAW – joint trial – application to ask further questions in cross-examination – where co-accused raising defence of duress – where evidence not led in chief emerge during cross-examination after conclusion of cross-examination – fairness to accused required opportunity to put his case – no unfairness to co-accused – application granted   CRIMINAL LAW – joint trial – application to ask further questions in cross-examination – where co-accused raising defence of duress – when counsel puts one version and co-accused puts alternative version – where both versions contained in statement – where evidence left in state of uncertainty and confusion – whether unfair – application granted
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	R v Qaumi & Ors (No 23) [2016] NSWSC 429 R v Qaumi & Ors (No 24) [2016] NSWSC 505 R v Qaumi & Ors (No 32) [2016] NSWSC 675 R v Qaumi & Ors (No 39) [2016] NSWSC 797
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

1. At or towards the end of cross-examination of Witness I[1] by Mr Clarke on behalf of the accused Mohammed Kalal, Ms Carroll (counsel for Jamil Qaumi) and Mr Stratton SC (counsel for Farhad Qaumi) sought leave or permission to undertake further cross-examination of the witness. I allowed limited further cross-examination over the objection of Mr Clarke. These are my reasons for doing so.

   1. Orders have been made to protect the identity of a number of informant witnesses: R v Qaumi and Ors (No 9) (Court Closure) [2016] NSWSC 171.

2. I have previously been called upon to consider a similar application by Jamil Qaumi in the course of the evidence of Witness G: R v Qaumi & Ors (No 32) [2016] NSWSC 675. I have also considered applications by Farhad Qaumi for orders under s 42 of the Evidence Act 1995 (NSW) preventing Mr Clarke from asking leading questions: R v Qaumi & Ors (No 39) [2016] NSWSC 797. In those decisions I made observations about the order of cross-examination and the forensic advantages and disadvantages which arise in this case where the accused last mentioned on the indictment (Mr Kalal) is conducting a defence of duress wherein the threats that underpin the defence came from the co-accused. This judgment must be read in conjunction with those earlier decisions and observations.

3. Decisions as to whether further cross-examination should be permitted turn on considerations of fairness to the respective accused. There can be no hard and fast rule and the decision will turn on the particular subject matter of the proposed additional questions. What will not (generally) be permitted is a further attempt to impeach the witness’s credibility. As I have observed in the earlier judgments, by the time Mr Clarke cross-examines there has been a sustained and lengthy attack on the credibility upon whose evidence he seeks to place some reliance. However, where new evidence emerges in the cross-examination of Mr Clarke, considerations of fairness may require that the accused affected be permitted to at least challenge that evidence.

Application by Jamil Qaumi

4. Ms Carroll submitted that the following evidence elicited in Mr Clarke’s cross-examination of Witness I was new and surprising and entitled her to embark on further cross-examination:

“Q. Did you hear Mohammed tell Jamil that he didn't want to do the shooting whilst you were at the park before you leave to go to the Chokolatta?

A. He could of, yeah.

Q. Didn't he say that his mother or father was ill and he didn't do it. He said his dad was sick at the time and saying, ‘Bro I can't you know.’ ‘Bro’ obviously speaking to Jamil?

A. Jamil, yes.

Q. That's what happened, isn't it?

A. I remember that, yes.

Q. And as a result of that, Jamil said to him:

‘If you don't do it I'll have to get your family. Sorry, bro, like it's’ ‑ effectively – ‘not a game.’

You heard that, didn't you?

A. Yes.

Q. He said: ‘If you don't do it I'm going to have to get your family’?

A. Yes.” [2]

2. T 3717.

5. Ms Carroll asserted that there was no material to similar effect in any of Witness I’s statements and that no such material was led in chief by the learned Crown Prosecutor. Accordingly, she sought to engage in further cross-examination on the subject.

6. Mr Clarke submitted that Jamil Qaumi was on notice that such material might be elicited because he provided particulars of the matters going to his proposed defence of duress earlier in the trial. This occurred as a result of case management orders made following the (belated) re-agitation of an issue of admissibility concerning evidence sought to be tendered against the accused Farhad Qaumi: see R v Qaumi & Ors(No 23) [2016] NSWSC 429, R v Qaumi & Ors (No 24) [2016] NSWSC 505 and MFI 25.

7. The particulars provided in MFI 25 identified Witness I as one of the witness through whom evidence supporting the defence of duress would be tendered. It identified certain parts of some of his statements. These did not include the evidence of which Ms Carroll complains. As I have said, Ms Carroll said that the material is not included in any of Witness I’s statements and Mr Clarke did not contradict that assertion. However, the particulars in MFI 25 also identified “the material supportive of his position, so far as the threats are concerned” and this included:

“(ii) Chokolatta shooting

Witness D – ERISP 4 March 2013 Q/A 820-825 and Q/A 827 & 847 -849.

Q/A ‘He didn’t want to do it, then Jamil forced him. He said “if you don’t do it I’ll have to get your family. Sorry Bro, like that’s this is a game’.”

8. Mr Clarke submitted that this document did (or ought to have) put counsel for Jamil Qaumi on notice that an attempt would be made to elicit similar evidence from other witnesses who may have been present. He argues that it was open to counsel to put a general proposition along the lines of “nothing was discussed in the park before you left to go to the Chokolatta with any witness?” [3]

   3. T 3728.

9. Whether counsel for Jamil Qaumi ought to have notice from these particulars that Witness I would be cross-examined on that conversation and that he would adopt it is questionable. Mr Clarke did not submit that it was contained in the statements of the witness. In any event, it is an important conversation from Jamil Qaumi’s point of view and one that (I am told) he denies. I formed the opinion that he was entitled to put to the witness that the conversation alleged did not occur. Further, he was entitled to put to the witness that there was nothing in the witness’s statement(s) suggesting that such a conversation occurred.

10. The unfairness to Jamil Qaumi in not permitting such limited cross-examination would have been substantial. Mr Clarke was unable to identify any relevant or significant unfairness to Mr Kalal in permitting the cross-examination. He submitted that “I want to maintain the forensic advantage of my place in the indictment”. He reminded me that he was conducting (amongst other things) a defence of duress. Neither of those matters, nor the combination of them, creates unfairness of any significance.

11. For those reasons I permitted Ms Carroll to undertake some very limited cross-examination at the conclusion of the cross-examination on behalf of Mr Kalal. That cross-examination was as follows:

“Q. Sir, in evidence this morning questions that were put to you included that you nominated that Mohammed had said to Jamil at the park and that is the Merrylands Park before going to Chokolatta a number of things. There was a conversation between the group; you recall that?

A. Yeah.

Q. And that you had said that his dad was sick?

A. Yes.

Q. And that he had said, "Bro, I can't go, you know"?

A. Yeah.

Q. And that then as part of that conversation, you said Jamil has threatened him saying, "If you don't do it I'll have to get your family, it's not a game", or words to that effect, is that right?

A. Yes.

Q. I suggest to you that conversation did not take place?

A. Nah.

Q. Do you agree or disagree with that?

A. Disagree.

Q. You did not tell police that conversation occurred, did you?

A. Nah.

Q. No?

A. Nah.

Q. You told police you'd seen Kalal at the park?

A. Yes, I saw Kalal.

Q. You saw Kalal at the park?

A. Yeah.

Q. You saw him shortly before they left, is that right?

A. Before we all left.

Q. And you'd seen him and Jamil, you told police, loading both guns before they left; that's right?

A. Yeah.

Q. But you never said anything about that conversation, did you?

A. Nah, never.

HIS HONOUR: Mr Stratton, I believe you have a similar application which I granted in your absence, members of the jury.”

12. Mr Clarke did not seek to ask further questions after this cross-examination. [4]

    4. T 3738.

Application by Farhad Qaumi

13. The application on behalf of Farhad Qaumi raised different considerations. It concerned evidence of things allegedly said by Mr Kalal at the scenes of the Zakaria shooting and the Chokolatta Café shooting. In each instance, Senior Counsel for Farhad Qaumi submitted that the cross-examination may have left the evidence in a state where it was misleading or confusing.

14. This arose from the following cross-examination on behalf of Mr Kalal in relation to the Zakaria shooting:

“Q. I think you told us earlier that Mohammed was saying, ‘I got him, I got him’. I think he actually said to you ‑ and this is my suggestion to you ‑ he said, ‘Let's go, let's go’; wanted to get out of there. Do you think that might have been more accurate as to what happened or not?

A. It could have been because it happened so quick so.

Q. Does it ring a bell that he said to you, ‘Let's go let's go’?

A. I think, yeah. I think.” [5]

5. T 3703.

15. Evidence that Mr Kalal said “I got him, I got him” and “don’t worry, I got him” emerged in the cross-examination by Mr Stratton SC and was based on things said to the police and in the witness’s statements. [6] Mr Stratton did not elicit evidence that the witness told police that Mr Kalal also said “Let’s go let’s go”.

    6. T 3413, 3415.

16. My attention was drawn to the contents of the witness’s statement dated 12 January 2015 and signed 16 January 2015. [7] The statement relates to the Zakaria shooting. In paragraph [49] of that statement Witness I said that after the shooting “Moey” [that is, the accused Kalal] “started screaming ‘Let’s go, let’s go.” The group then drove away and in the car “Moey was saying, ‘I got him, I got him’.

    7. MFI 112.

17. While it was not suggested – and, in any event, I do not accept – that there was any attempt to mislead either the witness or the jury, I formed the view that the state of the evidence was confusing. The way in which the questions were put – “Do you think that might have been more accurate” – suggested that either one thing was said or the other. The witness had told Mr Stratton that Mr Kalal said one thing (“I got him, I got him”) but appeared to accept that what he really said was another (“Let’s go, let’s go”). However, his statement suggested that the witness’s evidence was that both things were said.

18. Because the prosecution did not elicit the evidence, and was disinclined to apply to cross-examine his own witness, the Crown Prosecutor indicated that he did not intend to re-examine on the subject.

19. I formed the opinion that the state of the evidence was confusing and possibly misleading and that this had potential to operate unfairly on Farhad Qaumi.

20. A very similar circumstance arose in relation to the Chokolatta Café shooting. The witness was asked the following questions by counsel for Mr Kalal in relation to the events that occurred after the shooting:

“Q. And could I suggest to you that in the rush to jump in the car and drive off, Mohammed Kalal actually bangs his leg and he limps a bit, doesn't he? He bangs his leg but what he says to you is not "I got him." He says,

"Let's go, let's go," as in drive the car?

A. "Let's go, let's go."

Q. Didn't he?

A. Yeah.

Q. And that's exactly what you did do, off you went in the car?

A. Drove off, yes.

Q. And when you got back to the park, I think the position is Mohammed Kalal said that he wanted to get out of here, didn't he?

A. Yes.”

21. The statement of the witness (MFI 111) referred in paragraph [70] to “Moey” saying “let’s go, let’s go” but it went on to allege that, as the perpetrators drove away, Mr Kalal said “I got him, I got him.”

22. I offered Mr Clarke the opportunity to clarify the matter but he declined that opportunity on the basis (as I understand it) that his cross-examination was based on his instructions and not on what appeared in the statements. [8]

    8. T 3731-3732, 3733

23. Accordingly, I allowed Mr Stratton to clarify the matter but the extent of the examination was extremely limited. I could see no unfairness to Mr Kalal in allowing Senior Counsel for the co-accused to untangle what may have been confusing and misleading evidence.

24. Mr Stratton SC asked the following further questions:

“Q. Witness, you recall that it was put to you by Mr Clarke in cross examination in relation to the Zakaria shooting and the Chokolatta shooting that rather than Mr Kalal saying, "I got him, I got him", Mr Kalal said, "Let's go, let's go"?

A. Yeah.

Q. In relation to the Zakaria shooting, in your statement of 16 January 2014 didn't you tell police that you heard Mohammed Kalal say both those things? That is, "Let's go, let's go" and then, "I got him, I got him"?

A. Yeah.

Q. In relation to the Chokolatta shooting, in your statement signed 16 January 2015, didn't you also say that Mohammed Kalal said both these things: "Let's go, let's go" and then "I got him, I got him"?

A. Yeah.

Q. What you said to the police was the truth, correct?

A. Yeah.” [9]

9. T 3736.

25. Counsel for Mr Kalal did not seek to ask further questions. [10]

**********

10. T 3738.

Endnotes

Decision last updated: 12 December 2016