Citation: R v Qaumi and Ors (No 4) [2016] NSWSC 1495
Court: Supreme Court of New South Wales
Date: 24 February 2016
Judge(s): Hamill J
Background
Two accused, brothers referred to here as the elder and younger Qaumi brothers, faced a joint criminal trial involving serious offences including a murder at Revesby Heights. A third co-accused, referred to here as Zarshoy, was also charged in connection with the same events. The broader Crown case and the composition of the indictment were addressed in earlier rulings, including R v Qaumi (No 3) [2016] NSWSC 15.
The Crown sought to tender recordings of telephone conversations made on 11 April 2015 between the two accused brothers, a man named Atwa, and Zarshoy's brother. All relevant parties were in custody at the time, and the phones used were contraband within the gaol. The recordings were played in court during a voir dire (a preliminary hearing to determine admissibility) and transcripts were provided as an aide memoire.
The Crown's position was that statements made by both brothers during those calls constituted admissions, or were at least capable of being used as admissions by a jury acting reasonably. Both accused objected to the evidence being tendered. The remaining four accused were not affected by this ruling.
Legal Issues
- Whether the telephone intercepts were relevant to the proceedings under the Evidence Act 1995 (NSW)
- Whether the statements made by the accused were capable of constituting admissions
- Whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW), requiring exclusion
Decision
Hamill J found that the evidence was relevant. The statements in which both brothers expressed concern that Zarshoy might "roll" or "snitch" on them were capable of supporting an inference that Zarshoy had knowledge of, and involvement in, criminal activity with the brothers. The court accepted the Crown's position that the evidence could rationally affect the probability of a fact in issue, satisfying the threshold for relevance.
The Crown argued the calls had specific probative value connecting the brothers to the Hamzy murder, pointing to references in the conversations to serious charges Zarshoy faced alongside them. Hamill J accepted this was a possible use of the evidence, but concluded it would require a degree of speculation. The context of the calls was, in the court's assessment, primarily a dispute between Atwa and Zarshoy over a debt, with the younger Qaumi brother appearing to play a mediating role while pursuing his own interests, including avoiding disruption to his gaol classification.
Three factors reduced the probative value of the evidence. First, it was unclear whether the brothers' concern about Zarshoy "rolling" related specifically to the Hamzy murder or to other criminal activity. Second, concern that someone might "roll" does not necessarily mean they will provide truthful information; they might equally provide false information to authorities. Third, the concern expressed may have been contingent on Atwa's threatened violence against Zarshoy failing, rather than reflecting consciousness of guilt about any particular offence.
Against that limited probative value, the court identified substantial prejudicial risk. The younger Qaumi brother's apparent acquiescence in a threat to kill Zarshoy disclosed a high degree of callousness. A jury could readily misuse that evidence. The calls also implied ongoing involvement in criminal gang activity while incarcerated, and the phones were contraband. Hamill J was satisfied that the probative value was outweighed by the danger of unfair prejudice, engaging the mandatory exclusion provision in s 137 of the Evidence Act 1995 (NSW).
Orders Made
- The telephone conversation evidence recorded on 11 April 2015 (summarised behind Tab 3 of voir dire Exhibit CC) was ruled inadmissible and excluded from the trial.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), a trial judge must exclude evidence if its probative value is outweighed by the danger of unfair prejudice; the provision is mandatory once that threshold is reached.
- Relevance alone does not guarantee admissibility: evidence may be relevant yet still excludable where alternative inferences significantly dilute its probative weight.
- A trial court may take into account competing or alternative inferences when assessing probative value, consistent with the approach in R v XY [2013] NSWCCA 121, even where debate continues about the precise scope of that assessment (as reflected in the tension between R v Shamouil and Dupas v The Queen).
- Statements expressing concern that a co-accused might "snitch" are capable of constituting admissions but are not necessarily strong ones: the court found such statements may be equally consistent with fear of false information being given to police, or with concerns arising from unrelated criminal activity.
- Evidence suggesting callousness, ongoing gang involvement, or in-custody misconduct carries a heightened risk of unfair prejudice, which may tip the balance toward exclusion even where some probative value exists.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 137
Cases
- R v Qaumi (No 3) [2016] NSWSC 15
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- Dupas v The Queen [2012] VSCA 328; 218 A Crim R 507
- R v XY [2013] NSWCCA 121
- DSJ v R; NS v R [2012] NSWCCA 9
- IMM v The Queen [2016] HCATrans 8