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Supreme Court 24 February 2016

R v Qaumi and Ors (No 6)

[2016] NSWSC 1600

HomicidePublic order & justice offences
CRIMINAL LAW IMPACT ON ASSESSMENT OF PROBATIVE VALUE DANGER OF UNFAIR PREJUDICE WHETHER CAPABLE OF CURE BY DIRECTION

Citation: R v Qaumi and Ors (No 6) [2016] NSWSC 1600
Court: Supreme Court of New South Wales
Date: 24 February 2016
Judge(s): Hamill J

Background

The accused Farhad Qaumi, along with co-accused including his brother Mumtaz Qaumi, faced serious charges connected to the Brothers for Life (Blacktown) criminal gang. The prosecution intended to call eight informant witnesses, identified only by letters, who were themselves former members of the group. A central issue in the prosecution's case was explaining why these witnesses had obeyed orders, including orders to shoot and kill people.

The prosecution sought to adduce evidence that Farhad Qaumi had boasted to fellow gang members about his alleged involvement in three previous killings. According to witness statements, he displayed images online at meetings and made explicit claims about having beaten murder charges. The prosecution's purpose was not to prove he actually committed those earlier killings, but to establish that these boasts created fear and enabled him to dominate and control other members of the group.

The accused did not object to the general body of evidence about threats and violence used against group members. The objection was confined to the specific evidence about the alleged three prior killings, on the basis that its unfair prejudicial effect outweighed its probative value.

  • Whether evidence of Farhad Qaumi's boasts about involvement in three previous killings was relevant to the proceedings
  • Whether, under section 137 of the Evidence Act 1995 (NSW), the probative value of that evidence was outweighed by the danger of unfair prejudice to the accused
  • Whether any direction to the jury could adequately cure that unfair prejudice
  • Whether the evidence could alternatively be admitted as tendency evidence under sections 97 and 101 of the Evidence Act 1995 (NSW)

Decision

Hamill J accepted that the evidence was relevant. Without understanding the fear and intimidation Farhad Qaumi cultivated, a jury could struggle to credit witness accounts of obediently following orders to commit serious violence. Relevance was not genuinely in dispute between the parties.

However, the court assessed the probative value of this particular evidence as relatively limited. There was already an extensive body of unobjected-to evidence, spanning some 18 separate incidents, documenting threats, bashings, and coercion inflicted on group members. That existing evidence was sufficient for a jury to understand the prosecution's case on fear and control without the additional evidence about three alleged prior killings.

The court identified a significant danger of unfair prejudice. Farhad Qaumi had apparently been acquitted of two murders after raising self-defence, and a third prosecution had not proceeded. Admitting evidence suggesting his guilt in those matters risked inflaming the jury and distracting it from the charges actually before the court. The prejudicial framing, in some witness statements, went beyond reporting a boast and asserted as fact that the accused had "gotten away with murder."

Hamill J concluded that no jury direction could adequately address the prejudice arising from this evidence. After conducting the balancing exercise required by section 137, the court ruled the evidence inadmissible. The ruling was made subject to two provisos: the Crown could re-ventilate the question if the volume of admissible intimidation evidence turned out to be significantly less than anticipated, and the ruling did not prevent a co-accused (Kalal) from potentially seeking to adduce some of the evidence through cross-examination in his own case.

Orders Made

  • Evidence from the eight informant witnesses concerning Farhad Qaumi's boasts about involvement in three previous killings ruled inadmissible under section 137 of the Evidence Act 1995 (NSW)
  • The ruling was subject to the Crown's ability to re-ventilate admissibility if the admissible body of other violence and intimidation evidence proved significantly narrower than understood
  • The ruling did not preclude a co-accused from seeking to adduce the evidence in that co-accused's own case, with prior notice to be given to Farhad Qaumi's legal representatives before any such attempt

Key Takeaways

  • Under section 137 of the Evidence Act 1995 (NSW), a court must exclude evidence if the danger of unfair prejudice to the accused outweighs its probative value, even where the evidence is conceded to be relevant.
  • The existence of a substantial, unobjected-to body of evidence on the same factual issue (here, fear and intimidation) is a material factor in assessing probative value: it reduces the incremental weight any additional evidence adds to the prosecution case.
  • Evidence framed as establishing, or implying, that an accused was actually guilty of prior uncharged serious offences of which they were acquitted carries a high risk of unfair prejudice that may not be curable by direction.
  • The court distinguished between the purpose for which evidence is formally tendered and the risk that a jury may use it for an impermissible purpose, finding that the two could not be sufficiently separated in this context.
  • A ruling excluding evidence on section 137 grounds does not necessarily apply to all parties in a joint trial: co-accused may have separate grounds to seek admission of the same material in their own cases, subject to further argument.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), sections 97, 101, 137

Cases
- R v Qaumi (AVL) [2015] NSWSC 1711
- R v Qaumi (No 3) (Severance and separate trials) [2016] NSWSC 15