Supreme Court New South Wales Medium Neutral Citation: R v Qaumi & Ors (No 48) [2016] NSWSC 1008 Hearing dates: 19-20 July 2016 Date of orders: 22 July 2016 Decision date: 22 July 2016 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: The paragraph [26] of Detective Sharkey's statement is inadmissible. Catchwords: CRIMINAL LAW – Evidence – admission – offer by accused to provide police with guns in exchange for reduced charges – "massacre guns" – not recorded electronically – whether "in the course of official questioning" – whether spontaneous utterance – where accused declined to participate in recorded interview – whether evidence relevant other than as tendency evidence – where accused's case involved a denial of having access to guns – whether evidence should be excluded in the exercise of discretion under various provisions of the Evidence Act 1995 (NSW). Legislation Cited: Criminal Code (WA) Criminal Law (Detention and Interrogation) Act 1995 (Tas) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Cases Cited: Kelly v The Queen [2004] HCA 12; 218 CLR 216 Nicholls v The Queen; Coates v The Queen [2005] HCA 1; 219 CLR 196 R v Naa [2009] NSWSC 851 R v Qaumi & Ors (No 3) (Severance and Separate trial) [2016] NSWSC 15 R v Shiavini [1999] NSWCCA 165 R v Sumpton [2014] NSWSC 1432 R v Taouk [2005] NSWCCA 155 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. The accused Farhad Qaumi objects to the prosecution leading evidence of a portion of a conversation that he allegedly had with a police officer, Ben Sharkey, whilst in custody at the Wyong Police Station on 8 January 2014. The objection was raised shortly before Mr Sharkey was to give evidence on the sixty eighth day of a jury trial. The part of the conversation to which objection is taken is recorded in paragraph 26 of Mr Sharkey's statement: "26. He said, 'What if I gave you a package? Could you do something for me?' I said, 'What do you mean?' He said, 'Guns bro. Fuckin' big ones. Maybe get rid of some charges?' I said, 'What guns?' He said, 'Fuckin' massacre guns bro. I do something for you. You can tell your boss, you got an arsenal off the street and I get off some charges. Huh?' I said, 'Mate I'll talk it over with my sergeant and we'll have a chat.'" 1. The conversation was not electronically recorded. There is no video or audio recording of the conversation. The evidence on the voir dire established that there were a variety of recording devices available at the police station. Notes were made of the conversation some time later but Mr Qaumi was not given the opportunity to read those notes and to adopt (or dispute) their contents. Senior Counsel for Mr Qaumi initially objected on the basis that the evidence was inadmissible under s 281 of the Criminal Procedure Act 1986 (NSW). As the argument developed, submissions were made as to the whether the evidence was relevant, whether the prosecution was seeking to use the evidence as tendency evidence (in the absence of proper notice), and whether the evidence should be excluded under ss 135, 137 and, finally, s 90 of the Evidence Act 1995 (NSW). Relevance and Tendency 1. Evidence is relevant if it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue". [1] I have determined that the evidence is relevant. A consistent theme in the cross-examination of a number of the witnesses is that members of the (alleged) criminal group other than Farhad Qaumi had access to guns. The evidence of a number of witnesses that Farhad Qaumi or his brothers provided guns used in the shootings has been hotly contested. As Senior Counsel for Farhad Qaumi put it in argument on the present objection, it is not disputed that the group had access to guns, and that individual members had access to guns "but the issue is whether or not the accused Farhad Qaumi had access to guns". [2] On its plain reading, the conversation to which objection is taken suggests that Mr Qaumi had access to guns. 2. It is true that the Crown does not (and could not) submit that the guns to which reference is made in the conversation are guns that were used in any of the shooting incidents or the charges arising out of the contents of "a bag of guns and drugs" surrendered to the police by Witness A. It is also true that the offer allegedly made by the accused does not clearly involve an admission that he owned the guns. However, neither of those matters eliminates the capacity of the evidence (if accepted) to rationally affect the issue of whether the accused had access to guns. 3. Further, another informant witness (Witness L) gave evidence of a conversation in which it was asserted that Mr Qaumi allocated various members of the group to "teams" of shooters. It was said that Mr Qaumi would be in the final group. The evidence-in-chief was as follows: "Q. You've mentioned go get them? A. Yes. Q. Was there anything further said about that? A. Yes, basically after that he made three shooting team after that. Q. Is that something that was said? A. Yes. Because to me, Mohammad Zarshoy and Jamil Qaumi, is the second shooting team. The first shooting team is going to be Witness C, Witness D and Witness I and the third shooting team is going to be Farhad Qaumi, Mumtaz Qaumi and Witness J. Q. All right. Was there further conversation? A. So the conversation was in case like the first one goes under, we got the backup team, then if something happened to us, then we got the last team. He goes, 'I'm going to put my vest on, bulletproof vest, I'm going to get my SKS [3] , I'm going to run into the houses, I'm going to start shooting at them'. Q. Who said that? A. Farhad that he would come." 1. The Crown returned to this alleged conversation later in the evidence-in-chief: "Q. Witness L, if I could take you to some evidence from yesterday, just to clarify something. You recall your evidence as to a conversation after Star City Casino? A. Yes. Q. Where you were in a place near the harbour, is that right? A. Yes. Q. You said Farhad Qaumi, Mumtaz Qaumi and Witness J, Witness J were present? A. Yes. Q. And that's when you said Farhad Qaumi spoke of a list of persons? A. Yes. Q. And teams of shooters? A. Yes. Q. You mentioned the conversation about, from Farhad Qaumi, the last team, he referred to a vest, is that right? A. Yes. Q. You said a bulletproof vest? A. Yes. Q. What else was it that he referred to when he said that for the last team? A. SKS. Q. SKS? A. Yes. Q. What did you understand an SKS to be? A. Machine gun. Q. If I could just clarify, at transcript 2829 it records you as saying: "He goes I'm gonna put my vest on, bulletproof vest, I'm going to get my scares, I'm going to run into the house, I'm going to start shooting at them." Q. Should "scares" be "SKS"? A. Yes." 1. Witness L's evidence was subject to substantial attack and this part of his evidence was specifically ridiculed and targeted as a fabrication. [4] The suggestion in the impugned conversation with Mr Sharkey that Mr Qaumi could give the police "a package" containing "guns bro. Fuckin' big ones … massacre guns" is capable of providing some support for Witness L's evidence. Evidence is not taken to be irrelevant because it relates only to the credibility of the witness: s 55(2)(a) of the Evidence Act. There is no suggestion that it is inadmissible under the credibility rule in ss 101A to 102 and that rule would not apply to evidence that is admissible for another purpose. 2. I am unable to accept that the Crown is seeking to adduce the evidence as tendency evidence as that expression is defined in s 97 of the Evidence Act. It is not led to establish "the character, reputation or conduct of [Mr Qaumi], or a tendency that [Mr Qaumi had] in order "to prove that Mr Qaumi has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind". Rather, it is tendered to establish that Mr Qaumi had access to guns at the relevant time and to rebut the suggestion that he did not have access to guns. That is relevant to the issue identified by Senior Counsel in argument, to the probabilities surrounding the evidence given by Witness L and in relation to the general charge of participation in a criminal group. [5] 3. I am not presently satisfied that the evidence may also, as the Crown submits, be evidence of a consciousness of guilt in relation to the charge for which Mr Qaumi was arrested. It is unnecessary to determine that question at this stage because I am satisfied that the evidence is otherwise relevant and, if it is admissible, the use to which it may be put can be determined at a later stage. "Verbals" and section 281 Criminal Procedure Act 1. Section 281 of the Criminal Procedure Act provides as follows: "281 Admissions by suspects (1) This section applies to an admission: (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless: (a) there is available to the court: (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made. (3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995 ) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2). (4) In this section: "investigating official" means: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations. "official questioning" means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. "reasonable excuse" includes: (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. "tape recording" includes: (a) audio recording, or (b) video recording, or (c) a video recording accompanied by a separately but contemporaneously recorded audio recording." 1. There is no issue that the evidence may constitute an admission, that Mr Qaumi was suspected of having committed an offence, and that the admission related to an indictable offence. The critical question under s 281(1) of the Criminal Procedure Act is whether the admission was made "in the course of official questioning". 2. Mr Stratton submitted that: "[T]his is precisely the sort of situation that section 281 of the Evidence Act and its predecessors was designed to overcome. The police had every means available to them to give the accused the opportunity to adopt the conversation but never took that opportunity." [6] 1. The Crown submits that the admission was not made in the course of official questioning. Rather, it was a spontaneous offer by Mr Qaumi to surrender guns to the police in exchange for a reduction in the number of charges. It was neither responsive to a question nor uttered at a time when questioning was taking place. 2. To determine whether the admission was made in the course of official questioning, it is necessary to consider the events that transpired between the time of Mr Qaumi's arrest and the time of the alleged admission. [7] This is set out in the statement of Mr Sharkey which was admitted on the voir dire. [8] There was no challenge to the basic chronology of events recorded in that statement although the contents of various conversations appear to be in dispute. 3. Mr Qaumi was arrested sometime after 2pm on 8 January 2014 at a resort at Wyong. His arrest was recorded with a video camera. He was conveyed to Wyong Police Station. He was told that he was under arrest in relation to "firearms and drug matters". There was a conversation in the police car and on the way back to the police station. This is not relevant for present purposes and I am not aware whether that conversation is to be led in evidence. At around 3pm Mr Qaumi was placed in the "custody area" of the Wyong Police station and had a conversation with a solicitor over the telephone. He was then taken outside so that he could smoke a cigarette. There was a further brief conversation. He was then returned to the dock area. He was taken outside to smoke on a few occasions over the next three hours. At about 6pm the police asked him if he would participate in an electronically recorded interview. He allegedly replied: "I will not leave the dock, I won't be interviewed. I won't go into the interview room and I won't sign any notebooks." 1. He refused to be recorded while the allegations were put to him and was again told that he would "be charged in relation to the firearms and drug offences". The police officer then made notes which he and his colleague signed. From the cross-examination on the voir dire, it seems that those notes did not contain a complete record of the conversation that preceded them. It appears that Mr Qaumi was never afforded the opportunity to adopt those notes as accurate. That omission is not presently relevant because I am not now concerned with the admissibility of those earlier conversations. In any event, Mr Qaumi had already indicated that he would not sign "any notebooks". 2. At around 9pm Mr Sharkey took a buccal swab from Mr Qaumi. Mr Qaumi left the dock area to attend an interview room so that the forensic procedure could be recorded. There was no relevant conversation. Mr Qaumi was returned to the dock. 3. Mr Sharkey then "performed administrative duties" before returning to the dock area to take Mr Qaumi's fingerprints. His statement records that he "told Farhad Qaumi that I would take his fingerprints". It was then that Mr Qaumi said "What if I gave you a package?" and the conversation reproduced in paragraph [1] of this judgment commenced. On the voir dire Mr Sharkey gave the following evidence: "Q. Did you say anything else before what you record there, Farhad Qaumi saying, 'What if I gave you a package'? A. Nothing nothing in relation to any of this. I probably said to him, 'All right mate, we're going to do your fingerprints and this is how we do it. I'm just going to hold your hand'. That sort of just explain to him how the machine works and, yeah, we just talked about that." 1. After the conversation, Mr Sharkey asked Sgt Campbell to speak to Mr Qaumi and there was a conversation recorded in paragraph [27] in the following terms: "27. I relayed the conversation with Sergeant CAMPBELL. CAMPBELL attended the dock area and I had a conversation with QAUMI whilst I obtained his fingerprints. CAMPBELL said, 'So what did you want to tell me about some guns?' He said, 'If you can do something for me, I can do something for you.' CAMPBELL said, 'Well what are we talking about? One handgun?' He said, 'You think Farhad QAUMI has one gun? Fuck bro it's for massacres. I want to work something out maybe later though'." 1. The Crown does not press that conversation. The Crown concedes that the conversation with Sgt Campbell was in the course of official questioning and does not contend that there was any reasonable excuse for failing to record it. 2. In Kelly v The Queen [2004] HCA 12; 218 CLR 216 a majority of the High Court (Gleeson CJ, Heydon and Hayne JJ; McHugh and Kirby JJ dissenting) held that a spontaneous comment by a suspect made after the conclusion of a recorded interview did not form part of the course of official questioning for the purposes of the Criminal Law (Detention and Interrogation) Act 1995 (Tas). 3. Nine months later, in Nicholls v The Queen; Coates v The Queen [2005] HCA 1; 219 CLR 196, the majority in Kelly v The Queen became the minority in a case out of Western Australia. That case concerned whether there was a reasonable excuse for not recording an admission made during a break in an electronically recorded interview with a person suspected of murder. That case was decided under the provisions of s 570D of the Criminal Code (WA). [9] The application of the Western Australian provision does not appear to turn on whether the admission was made "in the course of official questioning". However, like s 281 and the Tasmanian provision considered in Kelly v The Queen, its purpose is to provide safeguards to accused persons against the use of disputed and unrecorded admissions made to police officers when the means to record those admissions exist and where there is no reasonable excuse for failing to use those facilities. The majority in Nicholls v The Queen; Coates v The Queen (Gummow and Callinan JJ; Kirby and McHugh JJ writing separately) held that there was no reasonable excuse for failing to record the conversation that occurred during a break in an interview that was otherwise recorded electronically by audio and video. 4. Counsel took me to the decisions of New South Wales courts in R v Shiavini [1999] NSWCCA 165, R v Taouk [2005] NSWCCA 155 and R v Naa [2009] NSWSC 851 (Howie J). The decisions in those cases turned on their own facts, as does the decision to which I have come in the present case. 5. The circumstances of the initial statement made in the present case most closely resemble those in Kelly v The Queen. In that case, the appellant voluntarily participated in a recorded interview and made a number of denials. He had earlier made admissions that he said were influenced by inducements or threats. The interview containing denials came to an end. The accused made a number of phone calls and was taken to hospital for a blood sample to be taken. In the course of that trip he allegedly said: "Sorry about the interview – no hard feelings, I was just playing the game. I suppose I shouldn't have said that, I suppose you will make notes of that as well." 1. The police did not respond to that statement and, as it turned out the police did not make a note of the conversation or seek to have the appellant adopt it. However, the evidence was led against him at his trial. The majority in the High Court held that the comment was not made in the course of official questioning. Their Honours took into account the policy behind the legislation and surveyed the case law that highlighted the dangers of police verbals. However, the majority held that the legislature chose to restrict the exclusionary provision to utterances or admissions made in the course of official questioning. 2. It was held that the spontaneous and unprovoked comment by the appellant was not made in the course of official questioning and was not caught by the provision. The decision to admit the evidence was upheld. 3. The decision in Kelly v The Queen was made under different legislation. However, the legislation – including the definition of "official questioning" – is in the same terms as s 281 of the Criminal Procedure Act. From [30]-[35] the majority explained the variety of legislative responses that were available. The New South Wales legislation was grouped with the Tasmanian legislation there under consideration. The majority held at [51] that the parliament could have adopted a more expansive approach to the exclusionary rule (as had occurred in Victoria and Western Australia) but elected not to do so. Accordingly, "It is not open to the courts of this country to ignore or alter the meaning of s 8 in order to achieve what they might think is a better solution by creating safeguards which Parliament itself chose not to create." 1. The majority held at [52] that the course of official questioning "marks out a period of time running from when questioning commenced to when it ceased". Video-taping "is only a condition for admissibility" when the admission is made "in the course of official questioning." Their Honours concluded on the facts of the case at [53]: "In this matter 'the course of official questioning' ended when Detective Sergeant Lopes ceased to ask questions and said at 9.17pm: '[W]e'll conclude the interview'. Other activities of the appellant not related to official questioning and other police procedures not involving questioning then took place. No further question was asked which triggered the impugned statement. To treat the impugned statement as having been made in the course of official questioning would be to ignore the statutory language. The impugned statement in this case is in the same position as the statement made by the accused in R v Julin where, after questioning had ceased, the accused had been arrested and cautioned, and driven half a kilometre to the scene of the crime during which time no conversation took place between him and the police officer: '[t]he official questioning of the accused concluded prior to the car trip when he was arrested and cautioned ..." 1. In the present case, there was no clearly defined period during which the accused was being asked questions in the course of official questioning. There was no formal interview because the accused declined to be interviewed. Unlike Kelly v The Queen, it cannot be said that "no further question was asked which triggered the impugned statement". [10] That proposition is true for the accused's initial statement when he said "What if I gave you a package? Could you do something for me?" However, the critical part of the admissions that followed were directly responsive to Mr Sharkey's questions. Mr Sharkey asked "What do you mean?" and "What guns?" It was in response to those questions that Mr Qaumi said "Guns bro. Fuckin' big ones" and "Fuckin' massacre guns bro. I do something for you. You can tell your boss, you got an arsenal off the street and I get off some charges. Huh?" 2. I can see no relevant distinction between those questions and answers and what followed when Sgt Campbell came to ask Farhad Qaumi about the things he had allegedly just said to Mr Sharkey. In each case, the questions put to Farhad Qaumi involved "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". 3. Accordingly, the admissions were made in the course of official questioning. The evidence is inadmissible unless there was a "reasonable excuse" for failing to record the conversation. The definition of reasonable excuse is inclusive and is not limited to the three matters referred to in the definition in sub-s (4). There is no suggestion of (a) mechanical failure or (c) a lack of available recording equipment. The evidence on the voir dire established that there was a variety of devices at the police station that could have been used to record conversation had with the accused. It is true that the accused had earlier indicated that he refused to have the questioning electronically recorded. But he had also said that "I won't be interviewed". At the relevant time – when he made the impugned admissions, the time that he was "being interviewed" – the accused did not refuse to have the conversation recorded. He was not asked. 4. I accept that Mr Sharkey may have been taken by surprise at the accused's sudden offer to do some kind of deal and that his questioning was intuitive and responsive to the situation. However, even when Sgt Campbell returned, there was no attempt to record the conversation. Notes were not taken for some time and no attempt was made to have the accused adopt those notes once they were made. I have considered whether the surprise with which Mr Sharkey was taken and the suddenness of the situation might constitute a reasonable excuse under the section but am not persuaded that they do. As soon as the detective made the decision to direct questions to the accused, the provision required the conversation to be video-taped absent any reasonable excuse for not doing so. 5. I am not satisfied that there was a reasonable excuse for failing to record the conversation in accordance with s 281. 6. For those reasons, the evidence is inadmissible. Exclusion under sections 135, 137 and 90 of the Evidence Act 1. Very little time was spent in submissions in relation to these alternative bases of exclusion contended for by Mr Qaumi. In view of the conclusion that I have reached under s 281 the issues can be disposed of briefly. However, I can inidicate that I would not have excluded the admissions under any of the nominated provisions of the Evidence Act. 2. It was suggested that the evidence may be misleading (s 135) as the jury may erroneously reason that the admission may relate to guns subject of particular charges. I do not consider this to be a significant risk because of the description of the guns ("big ones", "massacre guns") in the disputed conversation. If the evidence was admitted, the jury could be instructed clearly and simply that it must not use the evidence in that way. 3. It was also suggested that the evidence may create a risk of unfair prejudice (s 137) because a particular charge relating to the purchase and test firing of an SKS assault rifle was separated before the trial commenced: see R v Qaumi & Ors (No 3) (Severance and Separate trial) [2016] NSWSC 15. I am unable to identify any unfair prejudice in allowing evidence of the admission here in question. The Crown will not be permitted to lead evidence in support of the count that was severed and the jury will be instructed as to the use to which the admission (if it is accepted) may be put. 4. Section 90 of the Evidence Act creates a discretion to exclude evidence of an admission where it would be unfair to allow the evidence "having regard to the circumstances in which they were made". No unfairness was identified apart from the failure of the police to record the admission. That unfairness goes beyond the failure to record the admission by electronic means. It also includes the failure to make contemporaneous notes and to give the accused the opportunity to adopt or refute the contents of the note. I am not satisfied that this renders unfair the use of the evidence having regard to the circumstances in which the admission was made. In any event, any unfairness can be cured by a strong direction as to the dangers of acting on uncorroborated evidence of admissions alleged by police and not recorded or adopted by the accused. 5. Proper application of the "discretions" created in ss 90, 135 and 137 of the Evidence Act would not have rendered the evidence inadmissible. Conclusion 1. For those reasons, I rule that paragraph [26] of Detective Sharkey's statement is inadmissible. ********** Endnotes 1. Section 55 of the Evidence Act. 2. T 4887. 3. Originally transcribed as "scares". 4. See for example T 2967-2972. It was also undermined at length in the cross-examination of counsel for Jamil Qaumi and through the examination of other witnesses. 5. That final aspect of its relevance was not referred to in argument. 6. T 4863. 7. No submission has been made that the length of his detention enlivens any relevant statutory provision: cf ss 99, 114 of the Law Enforcement (Powers and Responsibilities Act 2002 (NSW); R v Sumpton [2014] NSWSC 1432. 8. Ex VD HHH. 9. The provision is set out at paragraph [149] of the judgment of Gummow and Callinan JJ. 10. Kelly v The Queen at [53]. 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: 23 April 2018