R v Qaumi (No 6) - [2016] NSWSC 1600

Supreme Court

New South Wales

Case Name:	R v Qaumi and Ors (No 6)
Medium Neutral Citation:	[2016] NSWSC 1600
Hearing Date(s):	18-19 February 2016
Date of Orders:	24 February 2016
Decision Date:	24 February 2016
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	The evidence is inadmissible.
Catchwords:	CRIMINAL LAW – evidence suggesting accused involved in three unrelated killings – accused boasted of killings to instil fear in other members of criminal gang – evidence relevant to explain conduct of witnesses in obeying orders – body of other evidence of violence and intimidation – impact on assessment of probative value – danger of unfair prejudice – whether capable of cure by direction
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	R v Qaumi (AVL) [2015] NSWSC 1711 R v Qaumi (No 3) (Severance and separate trials) [2016] NSWSC 15
Category:	Procedural rulings
Parties:	Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Amanda Crowe 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) Katiz (Solicitor) (Crowe) R Driels (Zarshoy) J Nicholson SC (Kalal) Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten & Co (M Quami) Bannisters Lawyers (J Quami) Oxford Lawyers (Crowe) Zahr Lawyers (Zarshoy) Hallak Law (Kalal)
File Number(s):	Farhad Quami - 2014/6809; 2014/315201; 2014/315252 Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260 Jamil Quami - 2013/336086; 2014/18164; 2014315253 Amanda Crowe – 2014/90422; 2014/315510 Mohammad Zarshoy – 2014/316236 Mohammad Kalal - 2013/344739; 2014/66939
Publication Restriction:	Nil.

JUDGMENT

Objection is taken by the accused Farhad Qaumi (and in so far as it touches upon him, Mumtaz Qaumi) to evidence which the prosecution intends to adduce from eight of the informant witnesses. I will refer to those witnesses by the letters that were allocated to them earlier in the voir dire.[1] The particular witnesses are those known as A, B, C, D, G, I, K and L. It is anticipated that each of those witnesses will give evidence concerning their fear of Farhad Qaumi and his use of intimidation and threats to exercise control over the other members of the Brothers for Life at Blacktown (Blacktown BFL). The accused does not object to such evidence per se but does raise objection in relation to specific items of evidence that suggest that he (Farhad Qaumi) was involved in three previous killings.
[1] R v Qaumi (suppression and non-publication) [2015] NSWSC 1711.
To understand the context in which this objection is taken, the summary of facts, charges and evidence undertaken in earlier judgments should be incorporated into these reasons.[2]
[2] R v Qaumi (No 3) (Severance and separate trials) [2016] NSWSC 15.
The evidence as it is presented in the statements and interviews of the witnesses[3] take various forms. In some instances the evidence is to the effect that Farhad Qaumi was in fact involved in, or responsible for, three previous murders. For example, witness A states (as a fact)…

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.

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Details

Case: [2016] NSWSC 1600
Decision Date: 24 February 2016

CaseChat Overview and Summary

In the case of R v Qaumi (No 6), the accused was on trial for various criminal offences. The prosecution sought to introduce evidence that the accused had boasted of being involved in three unrelated killings. The purpose of this evidence was to explain the conduct of certain witnesses in obeying the accused's orders. The defence objected on the basis that the evidence was highly prejudicial and would unfairly sway the jury against the accused.

The legal issues before the court involved the admissibility of the evidence of the accused's boasting. The court had to consider whether the probative value of the evidence outweighed the risk of unfair prejudice. The court also had to consider whether any prejudice could be cured by an appropriate direction to the jury.

The court found that the evidence of the boasting was relevant to the accused's state of mind and to explain the conduct of the witnesses. The court also found that the evidence was part of a body of other evidence of violence and intimidation, which was relevant to the charges against the accused. The court concluded that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. The court also found that any prejudice could be cured by an appropriate direction to the jury. The evidence was therefore admitted.

Orders