R v Qaumi (No 54)

[2016] NSWSC 1067

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 54) [2016] NSWSC 1067
Hearing dates:	2 August 2016
Date of orders:	02 August 2016
Decision date:	08 August 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Evidentiary rulings made – see paragraphs [8], [14], [21], [22] and [27]
Catchwords:	CRIMINAL LAW – admissibility of evidence – listening device recording of two accused in police cells after their arrest – lengthy recording – parties agreed on all but four passages of transcript – recorded conversation similar to evidence previously excluded – evidence excluded because police failed to record admissions – whether unfair to use evidence – relevance of evidence to the issue of whether accused had access to firearms – whether danger of unfair prejudice – assessment by accused of strength of police case – “I think we’re fucked” – not an admission or demonstrative of a consciousness of guilt – merely an assessment of the strength of the evidence
Legislation Cited:	Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Em v Queen [2007] HCA 46; 232 CLR 67 R v Qaumi & Ors (No 3) (Severance and separate trial) [2016] NSWSC 15 R v Qaumi & Ors (No 48) [2016] NSWSC 1008
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 Tuesday 2 August 2016 I heard arguments on behalf of Farhad Qaumi and Mumtaz Qaumi concerning objections that each made to various portions of a listening device recording of a conversation between them in the Wyong police station cells shortly after their arrest on 9 January 2014.

2. I was advised that the formal recording of the conversation occurred over a period of many hours (possibly 17 hours) and that the parties had largely agreed on the parts of the recording that should be played to the jury. I was not asked to listen to any part of the audio recording. However, a transcript of the recording, indicating the areas that the Crown agreed not to lead, was marked as an exhibit on the voir dire. [1] A second version of that transcript was marked exhibit VD NNN(2). The second version had colour-coded highlighting indicating which accused took the various objections.

   1. Ex VD NNN

3. The day before the argument proceeded, I was provided with a list of objections taken by Jamil Qaumi (Ex VD 39) and a list of some 29 objections taken on behalf of Farhad and Mumtaz Qaumi (Ex VD 37). By the time the argument proceeded, the parties had reached agreement in relation to Jamil Qaumi’s objections and there remained only four passages in dispute as between the Crown and the other accused. Those passages were referred to in Ex VD 37 as objections numbered 1, 14, 16 and 18. I will adopt those numbers for the purpose of identifying the objections in these reasons.

4. To enable the Crown to arrange for the editing of the disk containing the audio recording and the written transcript, I made rulings at the conclusion of the arguments. I indicated that I would provide reasons at a later time. These are my reasons.

Objection 1 (top of page 4) [2]

2. Of Ex VD NNN.

5. The first objection is to the recording of Farhad Qaumi saying:

“I already told them I go, “Listen, I will give you my atkays (hahaha) drop the charges you dogs (laughs) have a look at the cunts they won’t (indecipherable)”.

6. Those words and that conversation was a reference back to words spoken by Farhad Qaumi to a police officer named Detective Sharkey. I had earlier ruled that the conversation with Detective Sharkey was not admissible: see R v Qaumi & Ors (No 48) [2016] NSWSC 1008. The evidence was excluded due to the failure to comply with s 281 of the Criminal Procedure Act 1986 (NSW). Contrary to the arguments advanced on that occasion, and advanced again on the hearing of the present application, I was (and remain) of the opinion that the evidence was relevant to various issues in the trial and in particular to the issue of whether Farhad Qaumi had access to guns.

7. It is significant in resolving the present objection that the words uttered by Farhad Qaumi to his brother were in almost identical terms to those which he had very shortly before uttered to Detective Sharkey and which was subject to exclusion under section 281 of the Criminal Procedure Act. However, the words were uttered in a different conversation and different considerations plainly arise. However, I felt uncomfortable in allowing the prosecution to produce evidence of those precise words when they were uttered so shortly after the conversation with the detective that had been excluded.

8. It was for that reason, and with some misgivings, that I came to the conclusion that it would be unfair to admit the evidence in view of the circumstances in which the admissions were made.

9. The misgivings to which I have just referred arose from the fact that the purpose of s 281 of the Criminal Procedure Act is to prevent evidence of disputed admissions being given by police officers unless they were recorded or there was a reasonable excuse for failing to record them. In the case of Farhad Qaumi reporting to his brother of the details of that conversation, there was no issue surrounding the recording of the conversation. Mr Qaumi’s words were uttered, not to a police officer, but to his brother and were captured by a lawfully installed listening device. Nevertheless, I did feel uncomfortable about allowing the evidence to be given because of its temporal proximity and almost verbatim echo of the words that had been excluded when an attempt was made to lead them through Detective Sharkey.

Objection 14 (top of p 43)

10. The second objection related to the following part of the recorded conversation:

“MQ – mumbles [indecipherable 02:04:08].

02:04:25 FQ – Mumbles [indecipherable] but I told him he wrecked his own bail cuz (indecipherable). That’s what I said to them cuz I got a small arsenal brother…

MQ – [They not understanding what to say].”

11. The objection to this evidence was twofold. First, it was submitted that the evidence lacked relevance or, if it had some relevance, was not particularly probative of any issue in the trial. I rejected that submission. As I explained in R v Qaumi & Ors (No 48) at [3]-[9], the evidence is relevant and quite probative in circumstances where the case being conducted on behalf of Farhad Qaumi is that he did not have access to guns. The words “I got a small arsenal” are capable of affecting an assessment of the probability that he did have access to firearms.

12. The second part of the objection was that the conversation was a reference back to the conversation with the police that had been excluded under s 281. In other words, it was suggested that Farhad Qaumi was referring to a conversation that he had had with the police a short time earlier and that the conversation with the police was not admissible and that, therefore, the conversation with his brother was not admissible.

13. In the case of this portion of the conversation, there were two distinguishing features to the situation that applied to the conversation subject to Objection 1 (dealt with above at [5] – [9]). First, the impugned passage occurred a considerable period of time after the conversation with the police officers. Secondly, the terms of the conversation – “I got a small arsenal” – are very different to the conversation excluded when the attempt was made to lead it through Detective Sharkey. Putting aside questions of lawfulness (which do not arise), it has been held that there is no relevant unfairness in the police recording a conversation covertly in circumstances where an accused person has otherwise exercised their right not to be subject to an electronically recorded interview or to provide a version of events “on the record”: cf Em v Queen [2007] HCA 46; 232 CLR 67 at [78] (Gleeson CJ and Heydon J) and [107]-[116] (Gummow and Hayne JJ).

14. I could see no basis under ss 90, 135 or 137 of the Evidence Act 1995 (NSW) or otherwise to exclude the evidence. Accordingly I ruled that that part of the listening device was admissible.

Objection 16 (top of p 45)

15. Objection was taken to the following portion of the listening device recording:

“FQ – He said, ‘It’s come back as fucking pure coke bro.’

MQ – Not Synthetic bro? Fucking it was shit bro. (Both laugh).

FQ – Yeah I know and it’s come back as coke.

MQ – And the other shit has come back (indecipherable) or something (both laugh). Now it’s just some I don’t know bro.

MQ – We got to think we got to (indecipherable). I don’t know bro. I think we are fucked but bro. We’re fucked.

MQ – They got no fingerprint, they got no DNA.

FQ – That doesn’t mean shit cuz, it doesn’t means nothing.

MQ – Dead set, I can’t go pick-up the guns nothing.”

16. It is important to understand the context in which this conversation occurred. It is apparent from the whole of the transcript that Farhad Qaumi was reading and analysing a Fact Sheet that was provided to him by the police, as well as considering things that he had been told on his arrest and in conversations he had earlier had with various police officers.

17. It was in that context that Farhad Qaumi said, “it’s come back as fucking pure coke” and that Mumtaz Qaumi made the comment, “not synthetic bro? Fucking it was shit bro”.

18. On the surrounding evidence, it is open to conclude that these comments related to a white powder that was located in a bag that also contained two firearms and several thousand pills later determined to be a synthetic version of the drug LSD. There has been a great deal of evidence in the trial concerning this bag, who owned it, how it was stored and how it was recovered by police. It was in December 2013, shortly before the arrest of Farhad and Mumtaz Qaumi, that a former member of the Brothers for Life at Blacktown (known as Witness A) contacted police and told them the location of the bag.

19. Witness A gave evidence of being given the bag by, amongst others, Jamil Qaumi and there is evidence from which an inference might be drawn that Mumtaz Qaumi was attempting to retrieve it back a short time before his arrest. Witness A gave evidence that Jamil Qaumi asked (or directed) him to store the bag and that he later called the police and took them to the area where he had hidden the bag. Other evidence shows that other members of the Brothers For Life tried to recover the bag and there is some evidence of Mumtaz Qaumi being involved in the attempt to recover the bag.

20. In those circumstances, the evidence of the conversation concerning the analysis of the powder substance as “pure coke” and “not synthetic” is very probative in establishing a connection between the two accused men and that bag. As I understand it (or as I was advised by counsel in the course of the argument) [3] the Qaumi’s were originally charged with possession of cocaine but that charge was later withdrawn when analysis showed that there was no known prohibited drug within the white powder substance.

    3. Transcript 5345-5346

21. I was unable to identify a danger of unfair prejudice in the admission of that part of the impugned passage and I ruled it to be admissible. However, I made that ruling conditional on the Crown adducing evidence of what was said shortly beforehand when Farhad Qaumi said “What the fuck is that bag brother? I’ve never seen that bag before. (MQ laughs) What bag brother, what’s this bag?”

22. I came to a different view in relation to the words, “I think we are fucked bro. We’re fucked.” The Crown submitted that this constituted an admission on behalf of the speaker that he knew that he was guilty. I did not accept that submission. While that is a possible inference to be drawn, the more rational inference in the circumstances and context is that the accused was making an assessment of the strength of the police case based on what he had been told and what he was reading in the fact sheet. I formed the view that the probative value of the evidence was slight and the danger of unfair prejudice (misuse) was significant. I ruled that portion of the conversation to be inadmissible.

Objection 18 (middle of p 57)

23. The final objection was to Farhad Qaumi saying the following:

“

“02:38:05 FQ – Did you see that CAMPBELL? That Detective CAMPBELL. Did you see him?

MQ – Yeah that tall dog.

FQ - That dog was (indecipherable) where’s the Kashia you’re talking about? (Indecipherable). He goes where’s the kashia you’re talking about? I go you talking about the bag? He goes (muffled – both laugh). Nah they can’t charge with the (indecipherable) you can’t, you know what I mean? I’m telling you cuz I reckon if I offer the atkays they will drop the argchay [4] .”

4. The version in Ex VD NNN(2) and Ex VD 37 (provided by Farhad Qaumi) includes the words “they will drop the argchay” while Ex NNN (provided by the Crown) says “they will drop the (indecipherable)”.

24. The Crown prosecutor told me that there will be evidence from a police officer as to the meaning of certain “code” alleged to be used in that passage. For example, the word “atkays” is a reference to guns and the word “argchay” is a reference to the charge.

25. In other words, the passage can be interpreted as Farhad Qaumi saying to his brother that the police might drop the charges if he surrendered a gun or guns. Whilst this has an echo of the conversation with Detective Sharkey that was excluded earlier in the trial, it is clearly not a reference to that conversation. Rather, it is a discussion about a possible future offer to the police. For the reasons previously identified in R v Qaumi & Ors (No 48) the offer to exchange guns for reduction of the charges is relevant to the issue of whether Farhad Qaumi had access to guns.

26. Part of the submission was that the reference to “atkay” may be a reference to an SKS assault rifle (also known sometimes as an AK-47). A weapon of this nature was subject to a separate charge that was previously severed from the present trial proceedings: R v Qaumi & Ors (No 3) (Severance and separate trial) [2016] NSWSC 15 at [29]-[30]. I did not accept that this created any relevant unfairness. The jury has not (and will not) hear other evidence concerning Mr Qaumi’s purchasing and discharging of that weapon (the conduct subject to the counts that were separated). Further, it will not be suggested by the Crown that the reference to firearms was a reference to the firearms that were located in the “bag of guns and drugs”. It could not be a reference to those guns as they were already in the possession of the police. For that reason, there will be no unfairness.

27. Farhad Qaumi’s comment is capable of being used by the jury as a relevant piece of evidence that suggests that, contrary to the evidence otherwise elicited in the trial, he did have access to one or more firearms. I can see no other potential misuse of the evidence and I was not persuaded that the evidence should be excluded pursuant to any provision of the Evidence Act or under the common law. Accordingly, I ruled that that part of the recorded was admissible.

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Endnotes

Decision last updated: 05 December 2016