R v Qaumi (No 47)

[2016] NSWSC 1007

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 47) [2016] NSWSC 1007
Hearing dates:	19 July 2016
Date of orders:	19 July 2016
Decision date:	19 July 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	The evidence is excluded.
Catchwords:	CRIMINAL LAW – hearsay evidence in telephone intercepts – whether representation made in furtherance of common purpose – narrative of past events – evidence excluded
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Landini v New South Wales [2007] NSWSC 259
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. On the sixty ninth day of the trial, senior counsel appearing for Farhad Qaumi raised an objection to two portions of a sequence of telephone intercept material that the parties otherwise agree is admissible. I ruled that the particular portions were not admissible and that the recordings and associated transcripts should be edited before the material is presented to the jury. These are my brief reasons for that decision.

2. The whole sequence of recordings was not tendered on the voir dire but the parties explained the context in which the two particular telephone calls (in which the impugned portions are found) were made. That context concerns a bag containing drugs and two firearms that, on the prosecution case, was left for safe-keeping with a person known as Witness A. As I understand it, it is the Crown case that the owners of the items in the bag were Farhad, Mumtaz and Jamil Qaumi. Each is charged with offences (counts 20, 21 and 22) arising from their alleged possession of the drugs and two guns. Witness A gave evidence that he received the bag from Jamil Qaumi and was given directions as to what to do with it. During the course of his evidence a number of telephone intercepts were tendered. These involved conversations with a person called Masieh Amiri who was a member of the Blacktown Brothers for Life. Witness A told Mr Amiri that the bag was with a third party who was refusing to return the bag unless he received money. This was a ruse because, by that time, the bag was in the possession of the police. The aim appeared to be to entrap Mr Amiri and to obtain evidence of the Qaumi brothers ownership or association with the bag and the items contained therein.

3. The sequence of calls that are now to be played are calls between other people, including Mr Amiri, in relation to the same subject matter. A number of the calls do not involve any of the accused men. Some do. Mr Amiri will not be called to give evidence. For the most part, the parties are in agreement as to which calls should be played. As I understand, the joint position of the parties, is that the evidence is relevant to establish a connection between the three accused and the bag. In particular, the evidence constitutes an exception to the hearsay rule because (on the prosecution case), the representations contained within the calls were made in furtherance of a common purpose that the person had with the accused or one or more person including the accused: see ss 81 and 87 of the Evidence Act1995 (NSW). The evidence may also be admissible on other bases but, one way or another, the parties are in agreement that the evidence is admissible.

4. The first call subject of the objection is a call between Masieh Amiri and Mumtaz Qaumi at around 1pm on 8 January 2014. [1] Objection was taken to the italicised parts of the following passage:

“MQ: Naa. Oy listen, try to get hold of this fucking little dog, [call his work, if he is there we will go to his work now].

MA: [the work is not telling me, remember last time I called F and told him. When F told me to call for the second time and give them his number so that they can call him. I called the office again and a lady answered and said why do you need him for], he went home, two second ago, she goes, he is just over here, I will call him. They put me on hold, she comes she goes, oh don’t call this number again cause he has left home and don’t call this number again. If you want to call his mobile number.”

1. Ex VD FFF.

5. While that passage may be admissible against Mumtaz Qaumi, it contains inadmissible hearsay against Farhad Qaumi. The italicised passage is not a representation in furtherance of the common purpose. Rather, it is a “narrative statement of account of some past event”: see Landini v New South Wales [2007] NSWSC 259 (Hall J) at [25]. It may be that other parts of the passage are similarly objectionable but, in the course of argument, the objection was refined to the italicised portion. I ruled that it was not admissible.

6. The second call was between Mr Amiri and another member of the Blacktown Brothers for Life, Harris Sadat. It occurred on 8 January 2014. Objection was taken to the following passage:

“HS: What about, how does the guy know it’s F’s stuff now.

MA: What do you mean.

HS: How is he going to know its F’s stuff?

MA: [Witness A]’s told him.

HS: [Witness A]’s told him?” [2]

2. I have inserted the question mark, at the end of this passage. It does not appear in the transcript.

7. Neither participant in the call is to give evidence. Again, this is a narrative of past events rather than an act done in furtherance of a common purpose.

8. In both instances, the evidence had the capacity to establish controversial propositions of fact against Farhad Qaumi through hearsay evidence that is not properly the subject of any recognised or statutory exception to the hearsay evidence. Accordingly, the evidence was excluded.

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Endnotes

Decision last updated: 30 November 2016