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 1. 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 1. The evidence proposed to be adduced from witness L concerns a conversation between the witness and Farhad Qaumi during which the co-accused Mumtaz Qaumi was present. In the conversation Farhad is alleged to have said rather unsavoury and abusive things about Witness M and, in the process, abused his brother (Mumtaz) for having believed information provided by Witness M to Mumtaz. On the prosecution case, it was this information that led to a series of offences arising out of an incident referred to as "Chokolatta Café shootings". These were counts 20-26 on the indictment to which Qaumi (No 3) related. The Crown case is that the target of the Chokolatta Café shootings (and one of the ultimate victims) had access to information concerning the addresses of the Brothers for Life at Blacktown and that there was a fear that he would provide that information to Mohammed Hamzy (also known as "LC" or "Little Crazy") in order that Hamzy might organise reprisal attacks on those associated with the Brothers for Life at Blacktown. It is worth observing in passing that Farhad Qaumi was not in Australia at the time of the Chokolatta Café shootings and the rather ill-considered venture appears to have been planned (on the prosecution) case by Mumtaz Qaumi and Witness M. 2. The conversation to which the present objection relates involved Farhad Qaumi complaining that the information provided by Witness M was patently bad information and that it had, in turn, led to a number of members of the Brothers for Life at Blacktown being incarcerated. For example, when speaking about Witness M he called her a "fucking dog, the fucking slut, because of her my boys are locked up" and "she's a fucking devil" (statement of witness L at Q843-844). 3. In the course of the same conversation, Farhad Qaumi also expressed anger at Mumtaz Qaumi, calling him a "dumb cunt" for believing Witness M. Importantly at the conclusion of the conversation the witness was asked "and how did Mumtaz take that?" to which the witness replied "he didn't say nothing". According to witness L, the conversation went on and the Qaumi brothers (Farhad and Mumtaz) started to talk about the possibility of murdering Witness M. They said things like "she's got to go" and "we're gonna knock her off". There then followed a quite detailed discussion as to the method that might be employed to carry out that plan. 4. The Crown submits that the words of Farhad Qaumi constitute an admission on his behalf as to some knowledge of the Chokolatta Café shooting. Mr Stratton SC submits that, on the contrary, it suggests that he was innocent of that charge because it shows that he was not involved in the planning. Rather, it implicates his brother Mumtaz. 5. In respect of Mumtaz, the Crown submits that the conversation constitutes an admission by silence. It is suggest that, having heard what Farhad had to say, in ordinary circumstances one would have expected Mumtaz to have responded in some way if it truly were the case that he had no knowledge of the Chokolatta Café shooting. Mr Young SC submits that the evidence "fails at the first hurdle" which I take to mean is not relevant and does not constitute an admission of any kind. 6. It is established that silence may constitute an implied admission depending on the circumstances. In R v Grills (1910) 11 CLR 400 Isaacs J said at 422: "It is an elementary rule of law, going to the very foundation of justice, that no man shall be adjudged to be guilty of a crime upon evidence of another person's previous assertions. It matters not whether the assertion was made in the absence or the presence of the accused, as a mere assertion it cannot be regarded as any proof of the culpability of the accused or any confirmation of his accusers. But it is evident that upon such an assertion being made, and equally whether in the accused's absence or presence, he may admit its truth, and if he does, then it becomes evidence against him of his guilt, not because another has said it, but because of the admission. It is then equivalent to his own statement, and is receivable in that character. And it is further manifest that the acknowledgment of its correctness may be made in an infinite variety of ways. There may be express and unqualified admission, or there may be a guarded admission, or there may be no direct but merely an implied acknowledgement or there may be conduct, active or passive, positive or negative, from which, having regard to the ordinary workings of human nature, a total denial may be considered by reasonable men to be precluded, because, if innocence existed, an unequivocal or a qualified denial would in such a situation be expected." 1. Although this passage appeared in a dissenting judgment, it has been described as "the classic statement" of the principle. [1] In R v Rose [2002] NSWCCA 455; 55 NSWLR 701 Wood CJ at CL and Howie J said: "259. In answer to this ground of appeal the Crown has submitted that a representation for the purpose of s 59 cannot arise from silence or, in this case, the failure of a person to come forward in answer to the Superintendent's inquiry. The Crown relies upon Hall v The Queen [1971] 1 WLR 299 as support for that submission. In Hall the Privy Council were concerned with the application of Rex v Christie [1914] AC 545 to a particular factual situation. In Christie it was held that in some circumstances the silence of a person when confronted with an allegation might be taken as an admission that the allegation was true. But in Hall it was held that Christie could not be applied in a situation where an allegation put to suspect was met with mere silence. This was because, as the suspect had a right to silence, there was no obligation upon him to answer the police officer and, therefore, no inference could be drawn from his failure to answer the allegation. 260. But there are instances in the law where silence gives rise to an implied representation of fact. Christie itself is one. Silence in the face of an allegation can amount to a representation that the allegation is true where in the circumstances it is reasonable to expect that the allegation would be answered by an explanation or denial. In Hall the implied representation did not arise because there was no such reasonable expectation where a suspect is being confronted by a police officer. In the law of estoppel a failure to speak, where there is a duty to do so, may give rise to a representation of existing fact: Legione v Hateley (1983) 152 CLR 406 at 438-439. In R v Evans (1992) 142 FLR 319 this Court considered whether silence could amount to an untrue representation for the purposes of an offence under 29B of the Crimes Act (Cth). In deciding that it could, Gleeson CJ, with whom the other members of the Court agreed, stated (at 320): 'Whether failure to disclose information involves, or amounts to a representation, depends upon the circumstances of the case. Whether suppression of the truth involves suggestion of falsehood is, in any given case, a question of fact. There is no principle of law which either requires or permits that a finding of fact about such an issue may, on the one hand, be significant for purposes of the civil law, but must, on the other hand, be disregarded for purposes of the criminal law. Of course, in a criminal case questions of onus of proof may be important. However, facts are facts, whether the proceedings be civil or criminal. It cannot be correct as a general [proposition] that it is impossible to make an untrue representation by omission. For examples of cases where it has been said that silence can amount to a representation: see Legione v Hateley (1983) 152 CLR 406 at 438-439; Union Bank of Australia Ltd v Puddy [1949] VLR 242 at 247; Westpac Banking Corporation v Robinson (1993) 30 NSWLR 668 at 688.' 261.There is no reason why the word "representation" as used in the Evidence Act should not encompass a communication made by silence or a failure to respond. As the judgment in Lee points out, in the portion quoted above, the Commission intended that the word be given a wide application so that: '… the term "representation" was used to apply to statements and to conduct and was used to encompass all that those statements or that conduct would convey to the observer.' 262. Whether a representation does arise from the silence or non-action of a person on any particular occasion will depend upon the circumstances and, in particular, whether an inference can be drawn that the person by silence or non-action made a representation of fact, regardless of whether or not the person intended to convey the representation." 1. I accept that in the circumstances of the present case, it would be open to a jury to find that the silence of Mumtaz Qaumi, in the face of the things allegedly said by his brother, constituted an implied admission that he did (as alleged) act on the information provided by Witness M and that this caused him "to go do a shooting" (ie the Chokolatta Café shooting). Accordingly, I accept that the evidence is relevant. 2. Each of the accused submitted that, even if the evidence has some relevance, the prejudicial impact of those parts of the conversation in which there is discussion of killing Witness M is so overwhelming that the evidence should be excluded under s 137 Evidence Act 1995 (NSW). The learned Crown Prosecutor acknowledges the potential for prejudice but submits that it is the fact that the accused are so concerned about Witness M's behaviour that they engage in a detailed conversation about killing her that gives the admissions their probative force. 3. It seems to me that any probative value that the evidence has is to be found in the conversation between Farhad and Mumtaz which preceded the suggestion that they might respond to the situation by arranging the killing of Witness M. I am unable to accept the submission that the ongoing discussion that they should kill her, and how they might do so, adds sufficiently to the probative value of the evidence to justify its admission given the obvious danger of unfair prejudice that arises from such evidence. 4. Accordingly, I would not permit evidence to be led concerning the proposed 'knocking off' of Witness M. However, I cannot see any relevant prejudicial impact in the first part of the conversation going before the jury. I accept the Crown's submission that the failure of Mumtaz to say anything at that stage is evidence capable of amounting to an admission by silence or some form of consciousness of guilt. I accept Mr Young's submission that there may be other inferences available, such as a reluctance to interject when Farhad was in full flight, but that is a matter that a jury is capable of assessing rather than a matter that should be excluded from its consideration. I acknowledge that the existence of competing inferences is a matter that might influence an assessment of probative value, [2] but in the absence of any clear prejudice, such as that which would arise if the subsequent conversation (concerning the plot to kill Witness M) was admitted, the balancing exercise required by s 137 is such that I would admit that evidence. Witness G's evidence of the conversation with Mumtaz Qaumi and Jamil Qaumi 1. Witness G says in paragraph 22 of his statement of 14 January 2015: "I would also like to add further information about Witness M. I can't be certain if it was at Long Bay Gaol or at Silverwater MRCC but I remember having a conversation with both Mumtaz and Jamil about Witness M. This was at the end of last year or during the first half of 2014. Both Jamil and Mumtaz were talking about Witness M and saying how worried they were that she 'knew too much.' They spoke about wanting to 'knock' her, like 'get rid of her.'" 1. Ms Carroll on behalf of Jamil Qaumi raises various legal objections to this. One was based around the provision in s 90 of the Evidence Act 1995 (NSW) which concerns the exclusion of admissions where the circumstances in which the admission was made is such that it is unfair to use the admission in trial. I do not accept that s 90 has any real relevance to the present question of admissibility. 2. However, I do accept Ms Carroll's submission that the extent to which this evidence could be used as an admission is slight. In other words, Ms Carroll argued that the probative value of the evidence was minimal. This was based on a variety of factors. For example, it is not clear who said the words attributed to the pair and, more importantly, it is not possible to determine the subject matter upon which Witness M was said to "know too much". I accept that these aspects of the evidence have the capacity to reduce the probative value. 3. Further, the prejudicial impact of a jury hearing that two co-accused may have in mind to do away with another co-accused on the basis of her knowing too much is the kind of unfair prejudice to which s 137 is directed. Another aspect of prejudice is the location where the conversation was alleged to have occurred, that is in a remand gaol either in Long Bay or Silverwater. There is also an element of unfairness in the fact that both the place and timing of the alleged admission is so vague as to be impossible for the accused to have any prospect of rebutting the evidence. In all of the circumstances, I am satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused and s 137 requires that it be rejected. Rulings 1. Witness M has indicated that she may attempt to adduce evidence of the kind that I have ruled inadmissible as between the Crown and the accused Farhad and Mumtaz Qaumi. I cannot presently perceive the relevance of conversations that took place many months after the events giving rise to the charges to any issue that would arise in her case. However, Witness M withdrew her barrister's instructions last weeks, that is around nine weeks into the pre-trial hearing. She is currently represented by a capable and well briefed solicitor who is attempting to find new counsel and has not yet taken (or had) the opportunity to be heard in relation to the admissibility of the evidence in Witness M's case. The ruling that I now make will not preclude Witness M from attempting to adduce such evidence in the course of the trial. I would expect that if she chooses to do this, the lawyers for the Mr Qaumi will be advised to enable them to raise objection in the absence of the jury. 2. In accordance with the reasons set out above, I make the following rulings: 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. ********** Endnotes 1. See for example R v M M J [2006] VSCA 226 at [18] (Warren CJ). 2. See R v XY [2013] NSWCCA 121 at [88]-[89] per Hoeben CJ at CL citing DSJ v R; NS v R [2012] NSWCCA 9 at [10] (Bathurst CJ); [11] (Allsop P) and [78] (Whealy JA). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2016