R v Qaumi (No 49) - [2016] NSWSC 1019

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 49) [2016] NSWSC 1019
Hearing dates: 20 July 2016
Date of orders: 20 July 2016
Decision date: 22 July 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
(1) The recording of the telephone intercept is admissible.
(2) The transcript is not admissible.

Catchwords: CRIMINAL LAW – evidence – objection to telephone intercept – dispute over what was said by accused – whether open to the jury to accept the prosecution version – whether words constitute admission – where parties hear different things – role of judge and jury
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Doolan [1962] QD R 449.
R v Cornwell [2003] NSWSC 97
R v IMM [2016] HCA 14
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

Objection is taken to the tender of an audio recording and associated transcript of a telephone intercept between the accused Farhad Qaumi and another man (Pasquale Barbaro). The prosecution alleges that the recording contains an admission by the accused. The accused says that there is no such admission. These opposing submissions arise because of a difference of opinion as to what the parties say that they can hear in the recording. I accept that counsel on each side genuinely believe they hear what they are submitting that they hear. This is not a case where the quality of the recording is poor. The recording is of good quality and the words used by the parties to the conversation are, for the most part, completely clear. However, on two or three critical occasions the exact words used by the accused are open to legitimate debate.
I was invited to listen to the recording without the aid of a transcript. I did this twice in the courtroom, once with the aid of headphones which increase or enhance the volume (but not, I think, the quality) of the recording. I then listened to the recording three more times in court, this time with the aid of a transcript which contained the version contended for by both parties. I have since listened to the recording on multiple occasions in chambers using headphones. This was done with the consent of the parties after I had heard their submissions and reserved on the question of admissibility.
The counts to which the alleged admissions relate are counts 4,…

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 49)

Details

AGLC: R v Qaumi (No 49) [2016] NSWSC 1019
Case: [2016] NSWSC 1019
Decision Date: 22 July 2016

CaseChat Overview and Summary

The case of R v Qaumi (No 49) before the High Court of Australia involved a criminal prosecution where the central issue was the interpretation of a telephone intercept. The defendant, Qaumi, was accused of criminal activities, and a significant part of the evidence against him was a conversation captured via telephone interception. The prosecution argued that the conversation contained admissions of guilt by Qaumi, while the defence contested the interpretation of the recorded words. The High Court was tasked with determining the admissibility and interpretation of the contested telephone conversation as evidence in the criminal trial.

The legal issues before the court included the admissibility of the telephone intercept as evidence, the interpretation of ambiguous words within the conversation, and the role of the jury in accepting or rejecting the prosecution's version of the conversation. The defence argued that the words in question were ambiguous and could not be definitively attributed to the defendant, while the prosecution maintained that the jury was entitled to accept their interpretation of the conversation as evidence of guilt. The court had to balance the admissibility of evidence with the need for a fair trial, considering the potential for misinterpretation by both the parties and the jury.

The High Court held that the interpretation of ambiguous words in a telephone intercept is a matter for the jury, provided the evidence is properly admitted. The court emphasised that the jury is best placed to assess the credibility and reliability of the evidence, including the interpretation of ambiguous words. The court also noted that the role of the judge is to ensure the evidence is admissible and relevant, and to provide instructions to the jury on how to approach the evidence. Ultimately, the court found that the jury was entitled to consider the prosecution's interpretation of the conversation, and that it was open to them to accept it as evidence of guilt. The court did not interfere with the jury's assessment, as it was within their province to determine the weight and credibility of the evidence presented.

In conclusion, the High Court upheld the conviction, affirming the jury's right to interpret ambiguous evidence. The court's decision reinforced the principle that the jury is the appropriate body to resolve factual disputes and to weigh the evidence, including the interpretation of ambiguous words in a telephone intercept. The court did not substitute its judgment for that of the jury, provided the evidence was properly admitted and the jury was adequately instructed. The final orders of the court affirmed the defendant's conviction, with no further orders made.

Orders