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Supreme Court 14 February 2017

R v Qaumi & Qaumi (No 11)

[2017] NSWSC 95

HomicidePublic order & justice offences
EVIDENCE ADMISSIBILITY NO OBJECTION TAKEN OBJECTION TAKEN DURING CLOSING ADDRESS CONSPIRATORS’ RULE CIRCUMSTANTIAL CASE

Citation: R v Qaumi & Qaumi (No 11) [2017] NSWSC 95
Court: Supreme Court of New South Wales
Date: 14 February 2017
Judge: Hamill J

Background

The accused, two brothers, were charged in connection with the murder of a man shot at his home in Strathfield on 16 December 2013. The Crown's case was that both brothers acted in concert in relation to the murder. The shooter, who gave evidence for the Crown, testified that he hid the murder weapon near his home after the killing and later showed the brothers where it was.

The shooter was subsequently arrested for a parole breach. Approximately three weeks after the murder, on 3 January 2014, one of the brothers (Farhad Qaumi) approached a witness (Witness K) and directed him to retrieve a package from bushland near the M4 Motorway and transport it to another location. Police intercepted the vehicle and located the package, which contained a firearm. Ballistics analysis confirmed it was the same gun used in the murder.

The evidence of Witness K had been admitted in the trial against both accused. Late in the trial, during closing address, senior counsel for the other brother (Mumtaz Qaumi) raised an objection to Witness K's evidence being used against his client, given that Mumtaz Qaumi was not present when Farhad Qaumi arranged for the gun to be moved.

  • Whether the evidence of Witness K was admissible against Mumtaz Qaumi under the co-conspirators' rule, given that the murder had already been completed and Mumtaz Qaumi was not present at the relevant events on 3 January 2014.
  • Whether an act carried out after the principal criminal act is capable of constituting an act "done in furtherance of the common purpose," so as to be admissible against a co-accused under the preconcert principle.
  • If the evidence was admissible, whether there were limits on the purposes for which it could be used against Mumtaz Qaumi.

Decision

Hamill J accepted the late objection, noting the flexibility available in a judge-alone trial to ensure fairness to the accused. The Crown did not seek to shut out the objection despite it being raised after closing addresses had commenced and the evidence had long since closed.

On the substantive question of admissibility, his Honour held that the act of retrieving the murder weapon after the shooter's arrest was an act done in furtherance of the common criminal purpose. The court reasoned that a crime such as murder does not have a clearly defined endpoint, and that post-offence acts such as concealing a weapon or destroying evidence can remain part of the joint enterprise. Farhad Qaumi's act of recovering the gun, viewed in the context of the shooter's arrest, supported an inference that it was connected to the agreed criminal enterprise.

His Honour drew on established authority confirming that acts and declarations of one conspirator are admissible against another even after the principal object of the conspiracy has been achieved, provided those acts were in furtherance of the common design. Ultimately, senior counsel for Mumtaz Qaumi conceded admissibility.

However, the court accepted that the evidence must be used in a limited way against Mumtaz Qaumi. Because there was no evidence that Mumtaz Qaumi had any knowledge of, or role in, Farhad Qaumi's instructions to Witness K, the evidence could not be used to establish consciousness of guilt on Mumtaz Qaumi's part. It remained admissible only as part of the circumstantial case: to establish a link between the accused and the identified murder weapon, and to provide some support for the credibility of the shooter's account of what happened to the gun after the killing.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under the co-conspirators' rule, as confirmed in Tripodi v The Queen (1961) 104 CLR 1, evidence of a co-accused's acts is admissible against another accused where there is reasonable evidence of preconcert and the act was done in furtherance of the common purpose.
  • Post-offence acts, such as retrieving or concealing a murder weapon after the principal offence is complete, can still constitute acts "in furtherance of the common purpose" and remain admissible against a non-present co-accused on that basis.
  • A murder does not have a fixed, readily identifiable endpoint: acts such as driving a perpetrator from a scene, hiding a weapon, or later recovering it can all fall within the scope of a joint criminal enterprise.
  • Where a co-accused was absent when a post-offence act occurred and there is no evidence of their knowledge or participation in that specific act, the evidence of that act is not admissible to prove consciousness of guilt against the absent accused.
  • In a judge-alone trial, Hamill J confirmed that procedural rules can operate with flexibility to ensure fairness, allowing a late objection to evidence to be heard even after closing addresses had commenced and the evidentiary phase had concluded.

Legislation and Cases Referenced

Cases:
- Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22
- R v Eccles and Merritt (1881) 7 VLR (L) 36
- R v SU and Ors (1995) 129 FLR 120

Legislation: No specific legislation was cited in the judgment.