R v Qaumi (No 48) - [2016] NSWSC 1008

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 48) [2016] NSWSC 1008
Hearing dates: 19-20 July 2016
Date of orders: 22 July 2016
Decision date: 22 July 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
The paragraph [26] of Detective Sharkey’s statement is inadmissible.

Catchwords: CRIMINAL LAW – Evidence – admission – offer by accused to provide police with guns in exchange for reduced charges – “massacre guns” – not recorded electronically – whether “in the course of official questioning” – whether spontaneous utterance – where accused declined to participate in recorded interview – whether evidence relevant other than as tendency evidence – where accused’s case involved a denial of having access to guns – whether evidence should be excluded in the exercise of discretion under various provisions of the Evidence Act 1995 (NSW).
Legislation Cited: Criminal Code (WA)
Criminal Law (Detention and Interrogation) Act 1995 (Tas)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases Cited: Kelly v The Queen [2004] HCA 12; 218 CLR 216
Nicholls v The Queen; Coates v The Queen [2005] HCA 1; 219 CLR 196
R v Naa [2009] NSWSC 851
R v Qaumi & Ors (No 3) (Severance and Separate trial) [2016] NSWSC 15
R v Shiavini [1999] NSWCCA 165
R v Sumpton [2014] NSWSC 1432
R v Taouk [2005] NSWCCA 155
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

The accused Farhad Qaumi objects to the prosecution leading evidence of a portion of a conversation that he allegedly had with a police officer, Ben Sharkey, whilst in custody at the Wyong Police Station on 8 January 2014. The objection was raised shortly before Mr Sharkey was to give evidence on the sixty eighth day of a jury trial. The part of the conversation to which objection is taken is recorded in paragraph 26 of Mr Sharkey’s statement:

“26. He said, ‘What if I gave you a package? Could you do something for me?’
I said, ‘What do you mean?’
He said, ‘Guns bro. Fuckin' big ones. Maybe get rid of some charges?’
I said, ‘What guns?’
He said, ‘Fuckin' massacre guns bro. I do something for you. You can tell your boss, you got an arsenal off the street and I get off some charges. Huh?’
I said, ‘Mate I'll talk it over…

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 48)

Details

AGLC: R v Qaumi (No 48) [2016] NSWSC 1008
Case: [2016] NSWSC 1008
Decision Date: 22 July 2016

CaseChat Overview and Summary

The case of R v Qaumi (No 48) involved the defendant, Qaumi, who was on trial for various criminal charges. The dispute centred on the admissibility of evidence related to an offer made by Qaumi to provide police with firearms in exchange for reduced charges. This evidence was not electronically recorded, and the issue was whether it was made in the course of official questioning, and if it was a spontaneous utterance. Qaumi had declined to participate in a recorded interview, and his defence relied on denying access to firearms. The court had to determine if the evidence was relevant beyond its tendency to prove a propensity and whether it should be excluded under the discretion granted by the Evidence Act 1995 (NSW).

The legal issues before the court were whether the evidence of Qaumi's offer to provide guns was admissible under the exceptions to the hearsay rule and whether the court should exercise its discretion to exclude the evidence under the Evidence Act 1995 (NSW). Specifically, the court needed to decide if the evidence was relevant apart from propensity evidence and whether it was obtained in the course of official questioning. The defence argued that the evidence should be excluded as it was not recorded and its probative value was substantially outweighed by the danger of unfair prejudice.

The court found that the evidence was not obtained in the course of official questioning, as Qaumi had declined to participate in a recorded interview. However, the court considered whether the evidence could be admitted as a spontaneous utterance. The court held that the evidence was relevant as it directly contradicted Qaumi's defence of denying access to firearms. Despite the potential prejudicial impact, the court determined that the probative value of the evidence outweighed any prejudicial effect. Consequently, the court exercised its discretion under the Evidence Act 1995 (NSW) to admit the evidence.

The court ordered that the evidence of Qaumi's offer to provide guns to the police in exchange for reduced charges be admitted. The court found that the evidence was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice. The trial proceeded with the admission of this evidence, which played a crucial role in the determination of the case.

Orders