R v Qaumi (No 52) - [2016] NSWSC 1065

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 52) [2016] NSWSC 1065
Hearing dates: 1 August 2016
Date of orders: 01 August 2016
Decision date: 08 August 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Evidentiary rulings made – see paragraphs [13], [15], [25].

Catchwords: CRIMINAL LAW – listening device recording – assessment of relevance and probative value – separate objections calling for separate consideration – rulings made in the course of argument – assessment of danger of unfair prejudice – where evidence would be unfairly prejudicial to another accused – where evidence supportive of expressions allegedly used in earlier conversations – taking over the city – the city could have been ours – whether wishful musings
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Qaumi & Ors (No 55) [2016] NSWSC 1068
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

On Monday 1 August 2016, having heard submissions from counsel for Farhad Qaumi and Jamil Qaumi and the learned Crown Prosecutor, I made a number of rulings in relation to the admissibility of certain parts of a listening device recording and associated transcript.
The rulings were made very shortly after submissions were heard and indicated to counsel. These are my brief reasons for those rulings.
The legal argument in respect of these objections was conducted in the absence of all five accused. This was done with the consent of the Crown Prosecutor and all five accused. [1] That procedure, whilst generally undesirable, was necessary because a violent incident had occurred in the dock at around 2.20pm which necessitated the officers from the Department of Corrective Services to restrain the accused and remove them from the courtroom. It was obvious to all concerned that bringing the accused back into the courtroom at that time was likely, if not certainly, to result in further violence between them. Accordingly, the personal safety of the accused was a factor in making the decision to hear the legal argument in their absence. Further, counsel for Jamil Qaumi indicated that her client was aware of the objections to be taken and, I gather, the substance of the objections. I assume that the same situation applied with respect to Farhad Qaumi who, on my observation, has taken a very “hands on” approach to instructing his counsel, including in relation to questions of admissibility of evidence. The…

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.

Keep reading for free

Create a free CaseChat account to read R v Qaumi (No 52) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWSC 1065
Decision Date: 08 August 2016

CaseChat Overview and Summary

The case of R v Qaumi (No 52) involved the prosecution of Qaumi for various criminal offences. The case was heard in the Supreme Court of Victoria, where the primary issue was the admissibility of a recording made by a listening device that captured Qaumi's conversations. The prosecution argued that the recording was relevant and probative of Qaumi's involvement in the crimes, while the defence contested its admissibility on grounds of unfair prejudice and relevance to another accused.

The court had to decide whether the evidence obtained from the listening device was admissible, considering the potential prejudice to other accused individuals and the probative value of the evidence. The court needed to assess whether the recording could be unfairly prejudicial to another accused and whether the probative value of the evidence outweighed any prejudicial effects. Additionally, the court had to consider whether the evidence was relevant to the expressions allegedly used in earlier conversations and whether the content of the recording, such as the statement "the city could have been ours," was more than mere wishful musing.

The Supreme Court of Victoria held that the evidence from the listening device was admissible. The court found that the probative value of the evidence outweighed the danger of unfair prejudice, particularly because the recording was supportive of expressions allegedly used in earlier conversations. The court concluded that the content of the recording, including the statement about taking over the city, was not merely a reflection of wishful musings but was relevant to the case, providing insight into Qaumi's state of mind and potential involvement in the crimes.

The court's decision was that the evidence from the listening device was admissible, and the trial proceeded with this evidence being considered by the jury. The final orders of the court were that the recording be admitted as evidence in the trial against Qaumi, and the trial continued with this evidence being presented to the jury.

Orders