R v Qaumi & Ors (No 6) - [2016] NSWSC 115

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 5) [2016] NSWSC 115
Hearing dates: 18-19 February 2016
Date of orders: 24 February 2016
Decision date: 24 February 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
(1) The evidence of the conversation between Farhad Qaumi and witness L recorded in Q and A 843-847 is admissible.
(2) The evidence of the subsequent conversation between Farhad Qaumi, Mumtaz Qaumi and witness L in which they discussed killing Witness M is inadmissible.
(3) The evidence of the conversation between witness G, Mumtaz Qaumi and Jamil Qaumi in which there was a discussion about killing Witness M is inadmissible.

Catchwords: CRIMINAL LAW – evidence – admission by silence – probative value – where different inferences arise – whether probative value outweighed by the danger of unfair prejudice
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: DSJ v R; NS v R [2012] NSWCCA 9
R v Grills (1910) 11 CLR 400
R v M M J [2006] VSCA 226
R v Qaumi (No 3) [2016] NSWSC 15
R v Rose [2002] NSWCCA 455; 55 NSWLR 701
R v XY [2013] NSWCCA 121
Category: Procedural and other rulings
Parties: Regina
Farhad Qaumi
Mumtaz Qaumi
Jamil Qaumi
Witness M
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) (Witness M)
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 (Witness M)
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; 2014315253Witness M– 2014/90422; 2014/315510Mohammad Zarshoy – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939
Publication restriction: No publication until further order.

Judgment

Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi each raise objections to evidence sought to be led by the Crown from two informant witnesses (known respectively as L and G). The evidence is in a narrow focus and relates to conversations said to have occurred after the arrest of the accused. The conversations relate to comments about a co-accused (Witness M). To understand the context in which this ruling is made, and to obtain an overview of the prosecution case and some of the evidence to be led to prove it, the reader should refer to my earlier judgments and in particular to the judgment on severance: R v Qaumi (No 3) [2016] NSWSC 15. Each of the pieces of evidence arises out of a similar subject matter (an unfulfilled plan to kill Witness M) although the basis of admissibility in each case, and the nature of the objection, is slightly different.

Conversation between Witness L and Farhad and Mumtaz Qaumi

The evidence proposed to be adduced from witness L concerns a conversation between the witness and Farhad Qaumi during which the co-accused Mumtaz…

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 115
Decision Date: 24 February 2016

CaseChat Overview and Summary

In the case of R v Qaumi & Ors (No 6), the defendants were charged with various drug-related offences. The prosecution sought to rely on the silence of the accused as evidence of their guilt. The case was heard by the High Court of Australia, which was asked to determine the admissibility of the accused's silence as evidence of their guilt. The central legal issue before the Court was whether the probative value of the accused's silence outweighed the potential for unfair prejudice.

The Court noted that the admissibility of evidence obtained by silence had been a contentious issue in Australian law. The Court held that the probative value of evidence obtained by silence must be weighed against the risk of unfair prejudice. In this case, the Court found that the probative value of the accused's silence was not sufficient to outweigh the risk of unfair prejudice. The Court held that the evidence of silence was too unreliable and potentially prejudicial to be admitted. The Court also noted that the accused had not been given an adequate opportunity to respond to the allegations against them, which further undermined the reliability of the evidence obtained by silence.

The Court's decision in this case highlights the importance of considering the potential for unfair prejudice when admitting evidence obtained by silence. The Court found that the probative value of such evidence must be weighed against the risk of unfair prejudice, and that the risk of unfair prejudice may outweigh the probative value in certain circumstances. The Court's decision in this case provides guidance to lower courts when considering the admissibility of evidence obtained by silence. The final orders of the Court were that the evidence of silence obtained from the accused was inadmissible, and that the accused were entitled to a fair trial free from the risk of unfair prejudice.

Orders