R v Qaumi & Qaumi (No 10) [2016] NSWSC 1747

Supreme Court New South Wales

Medium Neutral Citation: R v Qaumi & Qaumi (No 10) [2016] NSWSC 1747 Hearing dates: 7 December 2016 Date of orders: 07 December 2016 Decision date: 07 December 2016 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: Evidence rejected. Catchwords: CRIMINAL LAW – admissibility of evidence – information derived from police intelligence sources – hearsay – relevant to person alleged by accused to be involved in killing – alternative hypothesis – unflattering character assessment – hearsay – source of information not known – other evidence connecting person identified by accused to Crown witness - malfeasance – hind teeth. Category: Procedural and other rulings Parties: Regina Farhad Qaumi Mumtaz Qaumi Representation: Counsel: K McKay (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami)

Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten & Co (M Quami) File Number(s): Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260 Publication restriction: Not for publication.

EX TEMPORE Judgment (REVISED) 1. Farhad Qaumi, through Senior Counsel, is attempting to tender a document which starts with a summary entitled "Product Details" and then attached to that is a three page "Information Report Summary" derived from the Intelligence Information System of the New South Wales Police Force. 2. The narrative concerns a person of interest, nominated as Pasquale Barbaro, who has been mentioned in the trial on many occasions and who, on the accused's theory of the case, may have been the person who arranged for the murder of Joseph Antoun. In particular, the document includes an unflattering character assessment of Mr Barbaro, as well as an analysis of both his prior convictions and the intelligence information as to his involvement in violent crime. Critically, it also asserts that Mr Barbaro put out a contract on the life of Joseph Antoun and "paid $500,000 for his death" and that he used to "stand over" Mr Antoun. It also refers to connections between Mr Barbaro and a well-known Melbourne organised crime figure (Mick Gatto) and a conflict that he was in with a man George Alex. Mr Alex has also been referred to in the course of the evidence in this trial as being connected with various relevant players, including Mr Antoun himself and a man Les Elias who, on the Crown case, was the person who put out the contract (accepted by the accused) to murder Joseph Antoun. 3. Initially, it was submitted that the evidence went to the "investigation". A a number of pieces of evidence have been elicited that were said to go to the investigation and the failure of the police to investigate other possible suspects who may have been behind the murder. However, it was conceded in argument that it is not to be put to Detective Smith, and it has not been put to any of the other investigating officers, that their investigation was deficient because of a failure to follow up leads like the one that is contained within this intelligence report. 4. It was then submitted that it was relevant to the defence case. I accept that the fact that someone other than the accused had put out a contract on the life of Mr Antoun and used to stand over him and also had connections with organised crime is relevant evidence. However, in addition to it being relevant, it must also be admissible. The source of the information is not known and the evidence in its form is plainly hearsay. 5. Mr Stratton SC does not ultimately point to any exception to the hearsay rule that would make it admissible. He suggested in argument that the material may explain how it was that the principal Crown witnesses, and in particular Witness L, constructed or fabricated their version of events. 6. However, whilst it was plainly put to Witness L (and indeed to Witness M) that they had fabricated their story, and also that somebody other than Farhad Qaumi and/or Mumtaz Qaumi engaged them to carry out the killing, it was not put to the witnesses that they were influenced in their fabrications by any information such as this, let alone the specifics that are contained in the document that is sought to be tendered. There is no evidence whatever that I can see or recall that would suggest that the witnesses knew about the kind of information contained in this intelligence report when they came to make their statements, and indeed it seems unlikely that they would have been aware of the specifics. 7. As much as I am sympathetic to the argument that the evidence is relevant, I am unable to see any basis upon which it is properly admissible in a criminal trial, whether tendered by the accused or by the Crown. 8. It should also be noted that there is ample evidence in the case, most of which has been admitted without objection by the Crown, that will allow the accused to put the alternative hypothesis of the case, namely that somebody else ordered the murder of Joseph Antoun and, more specifically, that Pasquale Barbaro was behind the murder. That includes evidence of animosity between Mr Barbaro and Mr Antoun and evidence from the relatives, or one of the relatives, of Joseph Antoun, that Mr Barbaro had previously attempted to murder Joseph Antoun. 9. There is also evidence, and ample evidence, including telephone records and most recently by Detective Smith in cross-examination of extensive contact between the "person of interest" (Pasquale Barbaro) and Witness M who, on any account of it, was involved in this malfeasance up to her hind teeth. 10. Accordingly, the report is inadmissible and its tender is rejected.