Supreme Court New South Wales Medium Neutral Citation: R v Qaumi & Ors (No 39) [2016] NSWSC 797 Hearing dates: 15 June 2016 Date of orders: 15 June 2016 Decision date: 15 June 2016 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: Application pursuant to s 42 of the Evidence Act 1995 (NSW) refused. Catchwords: CRIMINAL LAW – Evidence – application under s 42 Evidence Act – application that co-accused not be permitted to ask leading questions in cross-examination – where co-accused raising defence of duress – Brothers For Life – where co-accused cross-examines last – forensic advantage – order to be reversed in addresses – cross-examine down, address up – whether witness sympathetic to co-accused – whether witness has an interest in common with the cross-examiner – whether facts better ascertained by non-leading questions – application refused – leading questions permitted 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. During the course of the evidence of Witness L, Senior Counsel for Farhad Qaumi sought an order under s 42 of the Evidence Act 1995 (NSW) whereby counsel for Mohammad Kalal would be disallowed from asking leading questions in cross-examination. [1] A similar application was raised (or foreshadowed) in the course of the examination of two earlier witnesses. [2] The application was couched in general terms although it was initially directed to particular questions. I decided to allow the particular questions, to refuse to make a global order disallowing leading questions but left open the possibility of granting a further application directed to specific questions, subject matters or subsequent witnesses. These are my reasons for those decisions. 2. It is important to understand, at least in general terms, the forensic landscape in which the application was made. Five accused men are standing trial jointly in relation to twenty four offences. Those offences encompass (amongst other things) five shooting incidents. The first of those incidents gives rise to a murder charge. Originally, there were eight accused charged with thirty six offences, encompassing nine shooting incidents including a further allegation of murder. A number of the counts were severed from the indictment and two accused were ordered to stand trial separately: R v Qaumi & Ors (No 3) (Severance and separate trial) [2016] NSWSC 15. The first of the counts that was severed from the indictment involved an allegation that Farhad Qaumi shot at a former member of the gang, Mustafa (Musti) Shanasa near the Wentworthville swimming pool. The severance of the counts relating to the Shanasa shooting is relevant to the objection that was taken to the leading question put to Witness L. 3. The Crown case in relation to all of the matters currently on the indictment is that Farhad Qaumi was the leader of a criminal gang called the Brothers for Life Blacktown and that he directed the activities of the group. Evidence has been, and will be, adduced that he ruled the organisation by fear and intimidation. The lawyers for the Crown and Farhad Qaumi have reached agreement on the nature and extent of such evidence. I understand that the actual details of the Shanasa shooting are not to be adduced but there is evidence that after the incident Farhad Qaumi boasted of the shooting by saying words to the effect that "Shanasa went out with a bang". The Crown case is that this was calculated to instil loyalty, or at least fear, in the group. 4. Mohammed Kalal is alleged to have been involved in the third and fourth shooting incident. These are being referred to in the trial as the "Zakaria shooting" and the "Chokolatta Café" shooting and comprise counts 7 to 16 on the indictment. One of the bases upon which Mr Kalal is conducting his defence is that he admits his involvement in the shootings but says that he was acting under duress. The duress is said to have arisen out of threats from Farhad Qaumi and his brother Jamil Qaumi. Another brother, Mumtaz Qaumi, was present at the time of one or more of these threats. Jamil and Mumtaz Qaumi are also standing trial. In this respect he seeks to rely on the body of evidence coming from the Crown witnesses concerning the methods by which Farhad Qaumi controlled and directed the group. 5. As a result of the form of the indictment, the order of cross-examination is such that counsel for Mr Kalal cross-examines each of the witnesses last. Farhad Qaumi cross-examines first followed by Mumtaz Qaumi, Jamil Qaumi and Mohommad Zarshoy. As I have observed in an earlier judgment, this creates forensic difficulties for those accused said to be responsible for the duress: R v Qaumi & Ors (No 32) [2016] NSWSC 675. 6. In criminal cases involving multiple accused, the general rule of practise is that the counsel "cross examine down" the indictment and "address up" the indictment. That means that the forensic disadvantage of which counsel for the Qaumi brothers have complained will be reversed in addresses. Counsel for each of the Qaumi brothers will have the opportunity to address after counsel for Mr Kalal. It has been made clear, at least by counsel for Jamil Qaumi, that the threats upon which Mr Kalal seeks to rely are denied. The other matter to be observed in considering the forensic advantages arising from the order of cross-examination is that by the time that counsel for Mr Kalal rises to cross-examine, a substantial and lengthy attack has been made on the credibility of the witness in the cross-examination undertaken by the Qaumi brothers and, in some instances, by Mr Zarshoy. In the case of witnesses G, L and M this attack has continued over many days. Both the length and substance of the cross-examination has the potential to reduce the impact of the evidence that Mr Kalal seeks to elicit. 7. Initially Senior Counsel objected to a leading question by which counsel for Mr Kalal seeked to ask a leading question to the following effect: "[And] Farhad told you and the other people, including Mohammed Kalal, [that Shanasa had 'gone out with a bang'?]" [3] 1. Ultimately, the objection to this question was withdrawn because of the risk that a non-leading question might elicit evidence about the shooting (of Shanasa) itself, rather than evidence confined to what Farhad Qaumi said to the group afterwards. [4] 2. However, an objection was maintained to the follow-up question which was foreshadowed by Mr Clarke in the following terms: "In the following weeks did Farhad Qaumi say on a number of occasions that members who want to leave will be going out with a bang also?" [5] 1. The basis of the objection was s 42 of the Evidence Act, so it remained in effect an objection to counsel for Mr Kalal asking leading questions in cross-examination. A similar objection was taken to leading questions attempting to elicit evidence of violence or threats and intimidation on the part of Farhad Qaumi. 2. Section 42 of the Evidence Act provides: "42 Leading questions (1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it. (2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which: (a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness, and (b) the witness has an interest consistent with an interest of the cross-examiner, and (c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter, and (d) the witness's age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness's answers. (3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used. (4) This section does not limit the court's power to control leading questions." 1. As I said, similar objections were raised when counsel for Mr Kalal was cross-examining Witness G and in anticipation of his cross-examination of Witness M. I directed that one question or area of cross-examination be elicited by non-leading questions in the course of Witness G's evidence on the basis that the witness seemed to have an interest consistent with that of Mr Kalal (that is, an antipathy to Farhad Qaumi) and because I was satisfied that the evidence was better ascertained by non-leading questions: sub-ss 42(2)(c) and s 42(3). [6] The parties resolved the issue that arose in the course of Witness M's evidence when counsel for Mr Kalal indicated that he did not propose to cross-examine that witness. [7] 2. In relation to the current objection (or application under s 42) Mr Stratton SC submitted that both s 42(2)(b) and 42(2)(c) were engaged. He submitted that Mr Clarke had not received a negative answer to that point and that this suggested that the witness was sympathetic or had an interest consistent with Mr Kalal. It is suggested that Mr Kalal and the witness share an antipathy towards Farhad Qaumi and seek to blame him for their involvement in the offences. This is an interest that is consistent between them. It has been put that there is unfairness to Farhad Qaumi (and to the other Qaumi brothers) because of the fact that Mr Clarke is cross-examining last in circumstances where the Qaumi brothers do not have the opportunity to challenge the evidence which arises after they have completed their cross-examination and (in some instances) without notice. 3. Mr Clarke resisted the application forcefully ("totally" as he put it) saying that he should not "be curbed in [his] style" and that "subject to [my] better view" intended "to proceed just as I intend to proceed". [8] He pointed out that the witness had given evidence implicating Mr Kalal directly in the Zakaria shooting and indirectly in the Chokolatta shooting. This does not suggest that the witness has an interest consistent with his client. He submitted that there was no evidence that the witness was sympathetic to Mr Kalal's cause or shared a common interest and that this was no more than an assertion on the part of Senior Counsel for Farhad Qaumi. [9] As I understand the submission, he relied on the fact that the power in sub-s 42(2) is a discretionary one and that the factors referred to are neither decisive nor exhaustive. He said that there were other facts relevant to the decision. He said that it "is a big stretch … to say that justifies an accused person not being able to put his case in the way that he chooses". [10] CONSIDERATION 1. As I have observed, the forensic advantage enjoyed by Mr Kalal in cross-examining last will be reversed when the parties come to address. Further, if material emerges in Mr Clarke's cross-examination that is genuinely new or surprising, it is open to counsel for the other accused to seek leave to ask further questions in cross-examination. This has already happened on one occasion and I allowed further, albeit limited, cross-examination of Witness G on behalf of both Jamil Qaumi and Farhad Qaumi after Mr Clarke had completed his cross-examination: R v Qaumi & Ors (No 32). [11] 2. While I accepted that both the witness and Mr Kalal contend that they were afraid of Farhad Qaumi and acted on his behalf because of their fear, I did not conclude that the witness had an interest consistent with that of the accused (Kalal). The witness's main interest was to comply with his undertaking to give evidence against the accused and this included giving evidence against Mr Kalal. He did this in providing evidence that supported the Crown case that Mr Kalal was involved in both the Zakaria and Chokolatta Café shootings. Further, I did not form the impression that witness was particularly sympathetic to Mr Kalal's case. 3. I took into account the fact that most leading questions (to the point of the objection) elicited an affirmative response. However, that circumstance appeared to arise more from the care with which the propositions were put than from any sympathy or common interest between the witness and Mr Kalal. As it turned out, when the cross-examination continued, the witness did not agree with every proposition put on behalf of Mr Kalal, although he agreed with the vast majority of them. Most of those propositions came from the statements and interviews that the witness had given to police so it is not surprising that he agreed with them. However, in some instances, the witness did not agree. For example: "Q. I suggest to you he said the following: "I got the fat cunt, he was on the floor". Do you recall that? A. No. Q. Did you see Jamil having a go at Witness I, asking him, 'What happened, why didn't you fucking shoot?' Because he had learnt by that stage that Witness I hadn't actually shot the revolver, do you recall that? A. I don't want to say so I don't want to say no either. I can't remember properly. Q. Sorry I missed that? A. I can't remember properly. Q. You can't remember. What I want to suggest to you is whatever was being said, you could see that the only intervention that was made in relation to the telling off, for want of a better word, of Jamil on Witness I, 'Why didn't you fucking shoot' was that Kalal intervened and said, 'Don't worry, I got him'. Does that ring a bell? A. The only thing I remember, Jamil asking him what happened and explaining the situation what happened." [12] 1. While there is an element of hindsight wisdom in this observation, it confirmed in retrospect my impression, formed at the time that the application to disallow leading questions was made, that the witness was not slavishly accepting the propositions being put on behalf of Mr Kalal. 2. Some commentators have observed that evidence adduced through non-leading questions is more powerful and that evidence obtained by leading questions may be "useless to the court": see, for example, J. D. Heydon, Cross on Evidence, (Lexis Nexis, 10th Ed., 2014) [17165]. While it may generally be true that evidence has more cogency if elicited by non-leading questions, something more is required before a judge would disallow a party from exercising their right to cross-examine in the way they consider appropriate on the basis that "the facts concerned would be better ascertained if leading questions were not asked": s 42(3). 3. I was not satisfied that the point had been reached where s 42(3) was engaged. Even on the assumption that there was some evidence to support the propositions in sub-section (2)(b) and (c), I was not inclined at that point to exercise the discretion to disallow leading questions in cross-examination. 4. Nothing in this judgment, or in the ruling that it explains, should be interpreted as suggesting that it is not open to the other accused to pursue future applications under s 42 or to apply for leave to ask further questions in cross-examine after Mr Kalal has examined the witnesses. The success of such applications will turn on the relevant statutory provisions, the nature and subject matter of the questions and the degree to which the evidence elicited, or sought to be elicited, creates prejudice or unfairness. ********** Endnotes 1. T 3180-3181. 2. T 2177-2178, 2560-2561. 3. T 3180-3183. 4. T 3183. 5. T 3184. 6. T 2177-2178. 7. T 2560-2561. 8. T 3182. 9. T 3184-3185. 10. T 3184. 11. And see the further cross-examination at T 2179-2180. 12. T 3205. 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