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

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.
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
The day before the argument proceeded, I was provided with a list of objections taken by Jamil Qaumi (Ex VD 39) and a…

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 54)

Details

AGLC: R v Qaumi (No 54) [2016] NSWSC 1067
Case: [2016] NSWSC 1067
Decision Date: 08 August 2016

CaseChat Overview and Summary

The case of R v Qaumi (No 54) involved two accused individuals, Qaumi and another, whose post-arrest conversation in police cells was recorded using a listening device. The central issue was the admissibility of this recorded conversation as evidence in the criminal proceedings against the accused. The court had to determine whether the lengthy recording, from which four passages were contested, could be used despite the police's failure to record specific admissions. The crux of the legal issue was whether the use of this evidence would be unfair to the accused and whether it held sufficient relevance to the question of whether the accused had access to firearms. Furthermore, the court had to assess whether the evidence posed a danger of unfair prejudice, particularly in relation to the accused's statement "I think we're fucked," which was argued to be more an assessment of the strength of the police case rather than an admission or indication of guilt.

The court addressed the admissibility of the contested evidence by considering the circumstances under which the recording was made and its relevance to the case. It noted that the contested passages bore similarities to evidence previously excluded, and the police had failed to capture specific admissions that could have corroborated the evidence. The court found that the recording was not an admission or indicative of a consciousness of guilt but rather an expression of the accused's assessment of the strength of the police case against them. Consequently, the court held that the evidence did not unfairly prejudice the accused and was relevant to determining whether the accused had access to firearms. The court concluded that the contested evidence could be admitted as it did not pose a danger of unfair prejudice and served a pertinent purpose in the trial.

Based on the reasoning provided, the court allowed the admission of the contested passages from the listening device recording, finding that they were relevant and did not unfairly prejudice the accused. The court's decision hinged on the distinction between an admission or indication of guilt and a subjective assessment of the strength of the opposing case. The court's ruling ensured that the evidence was not misused and that the trial remained fair and focused on the facts of the case.

Orders