Supreme Court New South Wales Medium Neutral Citation: R v Qaumi & Ors (No 29) [2016] NSWSC 569 Hearing dates: 5 May 2016 Date of orders: 05 May 2016 Decision date: 05 May 2016 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: Application for discharge of jury refused. Catchwords: CRIMINAL LAW – application for discharge of jury – where counsel for co-accused elicits potentially prejudicial evidence – "stand over bloke" – "got out of gaol" – where counsel misapprehended interview – failure to object to evidence not relevant to discharge application – potential for prejudice – no clear identification of accused – minor incident in a lengthy trial – potential prejudice cured by direction 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 Thursday 5 May 2016, Mr Clarke of counsel made an application for a discharge of the jury in respect of his client Mohammed Kalal. The application arose because of the potential prejudice occasioned by the cross-examination of a prosecution witness (Craig McCarthy) by Senior Counsel for Farhad Qaumi late on Wednesday 4 May 2016. I refused the application. These are my reasons for doing so. 2. The witness's evidence concerns the hiring of a rental car on 28 October 2013. The witness says that he hired the car with the accused Mohammed Kalal. That evidence appears to be undisputed and is supported by documentary evidence (Exhibit UUU). Mr McCarthy went on to give evidence that the car was used that afternoon to deliver cannabis. On the Crown case, the car was used later that night or in the early hours of the following morning, to drive the assassins to and from Bardo Circuit Revesby Heights where Mahmoud Hamzy was shot dead. It was later found burned out. It is no part of the Crown case that Mr Kalal (or the witness McCarthy) hired the car in the knowledge that it would be used in the murder. As I understand it, the evidence will suggest that the plan to commit the murder at Revesby Heights was not hatched until afterwards. 3. Mr Kalal is charged in relation to two shootings that occurred later in time (counts 8 to 17) as well as with an offence of participating in a criminal group (count 24). The evidence of Mr McCarthy concerning the hiring of the car and its use in doing drug deals is admitted against Mr Kalal only in relation to count 24. The Crown does not seek to use that evidence against him in any other way. 4. The cross-examination that provoked the application for a discharge of the jury was as follows: "Q. Did you know Witness A? A. No. No. Q. Did you ever tell anyone that you dropped Mr Kalal at a railway station that day? A. Only Jarrod when I got home. Q. Do you know Witness L? A. Who? Q. Witness L? A. No, no, not at all. Q. Were you interviewed by police in an electronically recorded interview? A. Yes. Q. Were you asked, 'And what did you know about Zack or Mohammad Khalil.' A. Yes. Q. Did you answer: 'Got out of gaol when I first met him, when he came around to Jarrod's there, because they were both arguing over the same girl. That's how I did get to meet him. I didn't like him from the word since I met him. Didn't like him, he's very, very arrogant and just no respect for elders or nothing, just like a stand over bloke sort of.' A. Pardon. Q. 'Like a stand over bloke sort of.' Did you say that to police? A. Yes, I did. They asked me my opinion. Q. Did Witness L supply drugs to you? A. No. HIS HONOUR: Sorry, who? You said Witness L. STRATTON: Yes. CROWN PROSECUTOR MCKAY: I object, your Honour. STRATTON Q. Did Mohammed - CROWN PROSECUTOR MCKAY: I object, your Honour." 1. That is the whole of the cross-examination and I have italicised part of the passage for reasons that will become clear. The objection taken by the Crown Prosecutor occurred a couple of minutes before 4 o'clock. The jury was released for the day while the objection was ventilated. The Crown's objection was that there was confusion as to who the witness was talking about and who it was that was said to have supplied the witness with drugs. It emerged in argument that the Crown's submission was correct. The parties seem to agree that the part of the interview referred to in cross-examination was in fact referring to the accused Mohammed Kalal. However, it referred to "Zack or Mohammed Khalil". It was the result of the misspelling, or mispronunciation, of the last syllable (which I have italicised) that led Senior Counsel into error. 2. The argument on the objection included the following: "CROWN PROSECUTOR MCKAY: There is confusion but I think the tenor of the interview is clear. He refers to Mohammad Khalil and the person he knows as Zack. Zack is the same as Mohammed Kalal. It may be different in different parts of the interview but it is not Witness L but Khalil is the way it is spelt, so it is Khalil, Mohammad Khalil. The objection is because it appeared my friends was confusing – he straight out said he didn't know Witness L, didn't know that name, and it seemed my friend was proceeding on the basis this may be Witness L, whereas in our submission it seems clear that he is referring to the person Zack, which it is the person Mohammed Kalal, the person he hired the vehicle with. HIS HONOUR: I think the evidence is confusing at the moment, Mr Stratton, and I invite you to - are you able to clarify it? STRATTON: The question isn't pressed. I thought he was referring to Witness L and that's how it appears in the transcript of the record of interview. HIS HONOUR: Should I not direct the jury in some way in relation to this, particularly given that I took it, I must say, just listening to it, to be a reference to Mr Kalal being the stand over man. STRATTON: That wasn't the intention, your Honour, despite it only remains a one sided cut throat case. HIS HONOUR: Let's all have a look at the transcript and see if I need to do anything about it. It is probably you that should be talking to me, Mr Clarke. CLARKE: I did start to listen more intently." 1. The reference to the one sided cut throat defence is a reference to the fact the Mr Kalal is mounting a defence to the effect that he was only involved because he was under duress by Farhad Qaumi. 2. Counsel for Mr Kalal did not object to the evidence as it was being given. However, the following morning he indicated that he was instructed to make an application to discharge the jury. The failure to object should be put to one side although it might be thought that, if the prejudice is as significant as is now suggested, it would have been clear as the evidence was elicited. Having said that, I was concerned as the evidence came out that there was confusion over the identity of the person who was said to have just "got out of gaol" and to be "stand over bloke sort of". That concern arose partially because of the witness's denial that he knew Witness L. Even though I had not read the interview to which Senior Counsel was referring, I was concerned that it may be a reference to Mr Kalal. 3. Accordingly, I accept that the incident had at least some capacity to cause prejudice to Mr Kalal. However, the extent to which that is so is somewhat speculative. Whether the jury might have associated the cross-examination with Mr Kalal is doubtful although I accept that it is possible given the balance of the witness's evidence. However, the cross-examination commenced with specific reference to "Witness L" and concluded when I asked Mr Stratton to confirm that he said "Witness L" and he agreed that he did. The name Mohammed Kalal was not mentioned at any stage. The closest it came was the reference to "Zack or Mohammed Kalil". 4. Counsel agreed that the accused Kalal has not previously been referred to as "Zack" in the presence of the jury (although I had heard or read that nickname in the course of the lengthy pre-trial hearings). By agreement, the Crown instructed the witness not to refer to the nickname in the balance of his evidence and he did not do so. Even if it later emerges that this was a nickname associated with Mr Kalal, I have no doubt that this incident will have been forgotten in light of the amount of important evidence that the jury is receiving and digesting each day. In the context of a trial of this length, the incident is of very little significance. 5. The incident happened in the middle of the fifth week of the trial. It is anticipated that the Crown case will continue for at least another two months. It is unlikely that those few questions will remain prominent – if they ever were prominent - in the jury's collective mind. 6. For those reasons, I formed the view that the incident could be cured by direction. Mr Stratton SC agreed to withdraw all of the cross-examination that is italicized in the passage set out above at [4]. The parties agree that if the jury asks for this part of the transcript, that portion should be redacted. When the jury returned to the courtroom, I directed them as follows: "HIS HONOUR: Good morning, members of the jury. The matter that we ended on yesterday has taken a little bit of time, as I am sure you can tell. You may recall yesterday afternoon that we had the witness Craig McCarthy giving evidence. Mr Stratton SC, who appears for Farhad Qaumi, was cross examining him. You will recall that Mr Stratton asked the witness whether he knew somebody called Witness L. You will find in the next few weeks I think that Witness L is to be a witness in the prosecution case. In fact, he is to be a very important witness in that case. Mr McCarthy said that he did not know Witness L. Mr Stratton then went on to ask a number of questions about someone called Mohammed or Zack Khalil or Khalili and asked questions about whether that person supplied the witness with drugs and other things like that. You will recall that at one stage I asked Mr Stratton whether he was referring to Khalili and then the Crown Prosecutor objected. That is the background reminding you of what happened yesterday. What has been discussed in your absence is the fact that what was in fact happening there was that there was some confusion in the mind of counsel at the time that he was putting those questions to the witness. That confusion now having been worked out or established, Mr Stratton has indicated that he withdraws those last few questions. You mustn't take this as a criticism of counsel because the reality is everybody at the Bar table is dealing with the brief that is – what was the number quoted to me yesterday 57,000 pages or something like that. DRIELS: Much more. HIS HONOUR: We're dealing with a lot of material so none of this is meant to be a criticism of Mr Stratton but it is the fact that those questions arose out of confusion and they have now been withdrawn. What I direct you as a matter of law is that you should disregard the questions that came immediately after Mr McCarthy denied knowing Witness L. They have no relevance to the case and they only serve to confuse the issues. What I will do is if you do at any stage request a copy of this part of the transcript, that portion will be taken out of your copy. It will of course remain in the official transcript because, unlike American television shows, we don't magically strike things from the record in this country, but it won't be in your copy because it will just distract you from your job." [1] 1. In providing those directions I deliberately avoided reference to Mr Kalal, the reference to the person getting out of gaol or the suggestion the person was a "stand-over bloke". 2. After Mr McCarthy finished giving his evidence, I provided the jury with direction as to the use that his evidence could be put in Mr Kalal's case: "HIS HONOUR: Members of the jury, as you will have seen, as we have gone through the witnesses, the prosecutor has identified against which of the particular accused the evidence is admitted and for the most part that is reasonably straightforward because, for example, the crime scene officer in relation to a particular offence is admitted against those accused charged with that offence. The evidence you have just heard about the hiring of the Nissan Tiida is actually admitted against all of the accused but in this instance it is a little bit more complex because it is admitted against them in relation to different offences. In particular, I should direct you now, and will no doubt direct you again, that while the evidence of the hiring of the Tiida is admitted against Mr Kalal, it is only admitted against him in respect of that last charge on the indictment you will remember which is that charge of participating in a criminal group. It is not admitted against him in any other way and it can't be used in any other way. It is not the Crown case that he was aware of what was to happen, according to the Crown, later that night at Bardo Circuit, Revesby Heights. So there is no suggestion whatsoever that Mr Kalal was involved in that offence in any way, even though it is the Crown case that he hired the car or was part of the hiring of that car, but not for the purpose that the Crown says it was ultimately used later that night." 1. I very much doubt that any prejudice arose to Mr Kalal as a result of the cross-examination and Senior Counsel's misapprehension as to the meaning of the interview. Even if there was any such prejudice, I am confident that the directions provided to the jury will have cured the prejudice. ********** Endnote 1. T 1317 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: 30 November 2016